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Title 20: Employees' Benefits

PART 10—CLAIMS FOR COMPENSATION UNDER THE
FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED

Contents

Subpart
A—General Provisions

Introduction
§ 10.0   What
are the provisions of the FECA, in general?
§ 10.1   What
rules govern the administration of the FECA and this chapter?
§ 10.2   What
do these regulations contain?
§ 10.3   Have
the collection of information requirements of this part been approved by
the Office of Management and Budget (OMB)?

Definitions
and Forms
§ 10.5   What
definitions apply to the regulations in this subchapter?
§ 10.6   What
special statutory definitions apply to dependents and survivors?
§ 10.7   What
forms are needed to process claims under the FECA?

Information
in Program Records
§ 10.10   Are
all documents relating to claims filed under the FECA considered
confidential?
§ 10.11   Who
maintains custody and control of FECA records?
§ 10.12   How
may a FECA claimant or beneficiary obtain copies of protected
records?
§ 10.13   What
process is used by a person who wants to correct FECA-related
documents?

Rights
and Penalties
§ 10.15   May
compensation rights be waived?
§ 10.16   What
criminal and civil penalties may be imposed in connection with a claim
under the FECA?
§ 10.17   Is
a beneficiary who defrauds the Government in connection with a claim for
benefits still entitled to those benefits?
§ 10.18   Can
a beneficiary who is incarcerated based on a felony conviction still
receive benefits?

Subpart
B—Filing Notices and Claims; Submitting Evidence

Notices
and Claims for Injury, Disease, and Death—Employee or Survivor's
Actions
§ 10.100   How
and when is a notice of traumatic injury filed?
§ 10.101   How
and when is a notice of occupational disease filed?
§ 10.102   How
and when is a claim for wage loss compensation filed?
§ 10.103   How
and when is a claim for permanent impairment filed?
§ 10.104   How
and when is a claim for recurrence filed?
§ 10.105   How
and when is a notice of death and claim for benefits filed?

Notices
and Claims for Injury, Disease, and Death—Employer's Actions
§ 10.110   What
should the employer do when an employee files a notice of traumatic injury
or occupational disease?
§ 10.111   What
should the employer do when an employee files an initial claim for
compensation due to disability or permanent impairment?
§ 10.112   What
should the employer do when an employee files a claim for continuing
compensation due to disability?
§ 10.113   What
should the employer do when an employee dies from a work-related injury or
disease?

Evidence
and Burden of Proof
§ 10.115   What
evidence is needed to establish a claim?
§ 10.116   What
additional evidence is needed in cases based on occupational
disease?
§ 10.117   What
happens if, in any claim, the employer contests any of the facts as stated
by the claimant?
§ 10.118   Does
the employer participate in the claims process in any other way?
§ 10.119   What
action will OWCP take with respect to information submitted by the
employer?
§ 10.120   May
a claimant submit additional evidence?
§ 10.121   What
happens if OWCP needs more evidence from the claimant?

Decisions
on Entitlement to Benefits
§ 10.125   How
does OWCP determine entitlement to benefits?
§ 10.126   What
does the decision contain?
§ 10.127   To
whom is the decision sent?

Subpart
C—Continuation of Pay
§ 10.200   What
is continuation of pay?

Eligibility
for COP
§ 10.205   What
conditions must be met to receive COP?
§ 10.206   May
an employee who uses leave after an injury later decide to use COP
instead?
§ 10.207   May
an employee who returns to work, then stops work again due to the effects
of the injury, receive COP?

Responsibilities
§ 10.210   What
are the employee's responsibilities in COP cases?
§ 10.211   What
are the employer's responsibilities in COP cases?

Calculation
of COP
§ 10.215   How
does OWCP compute the number of days of COP used?
§ 10.216   How
is the pay rate for COP calculated?
§ 10.217   Is
COP charged if the employee continues to work, but in a different job that
pays less?

Controversion
and Termination of COP
§ 10.220   When
is an employer not required to pay COP?
§ 10.221   How
is a claim for COP controverted?
§ 10.222   When
may an employer terminate COP which has already begun?
§ 10.223   Are
there other circumstances under which OWCP will not authorize payment of
COP?
§ 10.224   What
happens if OWCP finds that the employee is not entitled to COP after it
has been paid?

Subpart
D—Medical and Related Benefits

Emergency
Medical Care
§ 10.300   What
are the basic rules for authorizing emergency medical care?
§ 10.301   May
the physician designated on Form CA-16 refer the employee to another
medical specialist or medical facility?
§ 10.302   Should
the employer authorize medical care if he or she doubts that the injury
occurred, or that it is work-related?
§ 10.303   Should
the employer use a Form CA-16 to authorize medical testing when an
employee is exposed to a workplace hazard just once?
§ 10.304   Are
there any exceptions to these procedures for obtaining medical
care?

Medical
Treatment and Related Issues
§ 10.310   What
are the basic rules for obtaining medical care?
§ 10.311   What
are the special rules for the services of chiropractors?
§ 10.312   What
are the special rules for the services of clinical
psychologists?
§ 10.313   Will
OWCP pay for preventive treatment?
§ 10.314   Will
OWCP pay for the services of an attendant?
§ 10.315   Will
OWCP pay for transportation to obtain medical treatment?
§ 10.316   After
selecting a treating physician, may an employee choose to be treated by
another physician instead?

Directed
Medical Examinations
§ 10.320   Can
OWCP require an employee to be examined by another physician?
§ 10.321   What
happens if the opinion of the physician selected by OWCP differs from the
opinion of the physician selected by the employee?
§ 10.322   Who
pays for second opinion and referee examinations?
§ 10.323   What
are the penalties for failing to report for or obstructing a second
opinion or referee examination?
§ 10.324   May
an employer require an employee to undergo a physical examination in
connection with a work-related injury?

Medical
Reports
§ 10.330   What
are the requirements for medical reports?
§ 10.331   How
and when should the medical report be submitted?
§ 10.332   What
additional medical information will OWCP require to support continuing
payment of benefits?
§ 10.333   What
additional medical information will OWCP require to support a claim for a
schedule award?

Medical
Bills
§ 10.335   How
are medical bills submitted?
§ 10.336   What
are the time frames for submitting bills?
§ 10.337   If
an employee is only partially reimbursed for a medical expense, must the
provider refund the balance of the amount paid to the employee?

Subpart
E—Compensation and Related Benefits

Compensation
for Disability and Impairment
§ 10.400   What
is total disability?
§ 10.401   When
and how is compensation for total disability paid?
§ 10.402   What
is partial disability?
§ 10.403   When
and how is compensation for partial disability paid?
§ 10.404   When
and how is compensation for a schedule impairment paid?
§ 10.405   Who
is considered a dependent in a claim based on disability or
impairment?
§ 10.406   What
are the maximum and minimum rates of compensation in disability
cases?

Compensation
for Death
§ 10.410   Who
is entitled to compensation in case of death, and what are the rates of
compensation payable in death cases?
§ 10.411   What
are the maximum and minimum rates of compensation in death
cases?
§ 10.412   Will
OWCP pay the costs of burial and transportation of the remains?
§ 10.413   May
a schedule award be paid after an employee's death?
§ 10.414   What
reports of dependents are needed in death cases?
§ 10.415   What
must a beneficiary do if the number of beneficiaries decreases?
§ 10.416   How
does a change in the number of beneficiaries affect the amount of
compensation paid to the other beneficiaries?
§ 10.417   What
reports are needed when compensation payments continue for children over
age 18?

Adjustments
to Compensation
§ 10.420   How
are cost-of-living adjustments applied?
§ 10.421   May
a beneficiary receive other kinds of payments from the Federal Government
concurrently with compensation?
§ 10.422   May
compensation payments be issued in a lump sum?
§ 10.423   May
compensation payments be assigned to, or attached by, creditors?
§ 10.424   May
someone other than the beneficiary be designated to receive compensation
payments?
§ 10.425   May
compensation be claimed for periods of restorable leave?

Overpayments
§ 10.430   How
does OWCP notify an individual of a payment made?
§ 10.431   What
does OWCP do when an overpayment is identified?
§ 10.432   How
can an individual present evidence to OWCP in response to a preliminary
notice of an overpayment?
§ 10.433   Under
what circumstances can OWCP waive recovery of an overpayment?
§ 10.434   If
OWCP finds that the recipient of an overpayment was not at fault, what
criteria are used to decide whether to waive recovery of it?
§ 10.435   Is
an individual responsible for an overpayment that resulted from an error
made by OWCP or another Government agency?
§ 10.436   Under
what circumstances would recovery of an overpayment defeat the purpose of
the FECA?
§ 10.437   Under
what circumstances would recovery of an overpayment be against equity and
good conscience?
§ 10.438   Can
OWCP require the individual who received the overpayment to submit
additional financial information?
§ 10.439   What
is addressed at a pre-recoupment hearing?
§ 10.440   How
does OWCP communicate its final decision concerning recovery of an
overpayment, and what appeal right accompanies it?
§ 10.441   How
are overpayments collected?

Subpart
F—Continuing Benefits

Rules
and Evidence
§ 10.500   What
are the basic rules governing continuing receipt of compensation benefits
and return to work?
§ 10.501   What
medical evidence is necessary to support continuing receipt of
compensation benefits?
§ 10.502   How
does OWCP evaluate evidence in support of continuing receipt of
compensation benefits?
§ 10.503   Under
what circumstances may OWCP reduce or terminate compensation
benefits?

Return
to Work—Employer's Responsibilities
§ 10.505   What
actions must the employer take?
§ 10.506   May
the employer monitor the employee's medical care?
§ 10.507   How
should the employer make an offer of suitable work?
§ 10.508   May
relocation expenses be paid for an employee who would need to move to
accept an offer of reemployment?
§ 10.509   If
an employee's light duty job is eliminated due to downsizing, what is the
effect on compensation?
§ 10.510   When
may a light duty job form the basis of a loss of wage-earning capacity
determination?
§ 10.511   How
may a loss of wage-earning capacity determination be modified?

Return
to Work—Employee's Responsibilities
§ 10.515   What
actions must the employee take with respect to returning to
work?
§ 10.516   How
will an employee know if OWCP considers a job to be suitable?
§ 10.517   What
are the penalties for refusing to accept a suitable job offer?
§ 10.518   Does
OWCP provide services to help employees return to work?
§ 10.519   What
action will OWCP take if an employee refuses to undergo vocational
rehabilitation?
§ 10.520   How
does OWCP determine compensation after an employee completes a vocational
rehabilitation program?
§ 10.521   If
an employee elects to receive retirement benefits instead of FECA
benefits, what effect may such an election have on that employee's
entitlement to FECA compensation?

Reports
of Earnings From Employment and Self-Employment
§ 10.525   What
information must the employee report?
§ 10.526   Must
the employee report volunteer activities?
§ 10.527   Does
OWCP verify reports of earnings?
§ 10.528   What
action will OWCP take if the employee fails to file a report of activity
indicating an ability to work?
§ 10.529   What
action will OWCP take if the employee files an incomplete report?

Reports
of Dependents
§ 10.535   How
are dependents defined, and what information must the employee
report?
§ 10.536   What
is the penalty for failing to submit a report of dependents?
§ 10.537   What
reports are needed when compensation payments continue for children over
age 18?

Reduction
and Termination of Compensation
§ 10.540   When
and how is compensation reduced or terminated?
§ 10.541   What
action will OWCP take after issuing written notice of its intention to
reduce or terminate compensation?

Subpart
G—Appeals Process
§ 10.600   How
can final decisions of OWCP be reviewed?

Reconsiderations
and Reviews by the Director
§ 10.605   What
is reconsideration?
§ 10.606   How
does a claimant request reconsideration?
§ 10.607   What
is the time limit for requesting reconsideration?
§ 10.608   How
does OWCP decide whether to grant or deny the request for
reconsideration?
§ 10.609   How
does OWCP decide whether new evidence requires modification of the prior
decision?
§ 10.610   What
is a review by the Director?

Hearings
§ 10.615   What
is a hearing?
§ 10.616   How
does a claimant obtain a hearing?
§ 10.617   How
is an oral hearing conducted?
§ 10.618   How
is a review of the written record conducted?
§ 10.619   May
subpoenas be issued for witnesses and documents?
§ 10.620   Who
pays the costs associated with subpoenas?
§ 10.621   What
is the employer's role when an oral hearing has been requested?
§ 10.622   May
a claimant or representative withdraw a request for or postpone a
hearing?

Review
by the Employees' Compensation Appeals Board (ECAB)
§ 10.625   What
kinds of decisions may be appealed?
§ 10.626   Who
has jurisdiction of cases on appeal to the ECAB?

Subpart
H—Special Provisions

Representation
§ 10.700   May
a claimant designate a representative?
§ 10.701   Who
may serve as a representative?
§ 10.702   How
are fees for services paid?
§ 10.703   How
are fee applications approved?
§ 10.704   What
penalties apply to representatives who collect a fee without
approval?

Third
Party Liability
§ 10.705   When
must an employee or other FECA beneficiary take action against a third
party?
§ 10.706   How
will a beneficiary know if OWCP or SOL has determined that action against
a third party is required?
§ 10.707   What
must a FECA beneficiary who is required to take action against a third
party do to satisfy the requirement that the claim be
“prosecuted”?
§ 10.708   Can
a FECA beneficiary who refuses to comply with a request to assign a claim
to the United States or to prosecute the claim in his or her own name be
penalized?
§ 10.709   What
happens if a beneficiary directed by OWCP or SOL to take action against a
third party does not believe that a claim can be successfully prosecuted
at a reasonable cost?
§ 10.710   Under
what circumstances must a recovery of money or other property in
connection with an injury or death for which benefits are payable under
the FECA be reported to OWCP or SOL?
§ 10.711   How
is the amount of the recovery of the FECA beneficiary
determined?
§ 10.712   How
much of any settlement or judgment must be paid to the United
States?
§ 10.713   How
is a structured settlement (that is, a settlement providing for receipt of
funds over a specified period of time) treated for purposes of reporting
the gross recovery?
§ 10.714   What
amounts are included in the refundable disbursements?
§ 10.715   Is
a beneficiary required to pay interest on the amount of the refund due to
the United States?
§ 10.716   If
the required refund is not paid within 30 days of the request for
repayment, can it be collected from payments due under the FECA?
§ 10.717   Is
a settlement or judgment received as a result of allegations of medical
malpractice in treating an injury covered by the FECA a gross recovery
that must be reported to OWCP or SOL?
§ 10.718   Are
payments to a beneficiary as a result of an insurance policy which the
beneficiary has purchased a gross recovery that must be reported to OWCP
or SOL?
§ 10.719   If
a settlement or judgment is received for more than one wound or medical
condition, can the refundable disbursements paid on a single FECA claim be
attributed to different conditions for purposes of calculating the refund
or credit owed to the United States?

Federal
Grand and Petit Jurors
§ 10.725   When
is a Federal grand or petit juror covered under the FECA?
§ 10.726   When
does a juror's entitlement to disability compensation begin?
§ 10.727   What
is the pay rate of jurors for compensation purposes?

Peace
Corps Volunteers
§ 10.730   What
are the conditions of coverage for Peace Corps volunteers and volunteer
leaders injured while serving outside the United States?
§ 10.731   What
is the pay rate of Peace Corps volunteers and volunteer leaders for
compensation purposes?

Non-Federal
Law Enforcement Officers
§ 10.735   When
is a non-Federal law enforcement officer (LEO) covered under the
FECA?
§ 10.736   What
are the time limits for filing a LEO claim?
§ 10.737   How
is a LEO claim filed, and who can file a LEO claim?
§ 10.738   Under
what circumstances are benefits payable in LEO claims?
§ 10.739   What
kind of objective evidence of a potential Federal crime must exist for
coverage to be extended?
§ 10.740   In
what situations will OWCP automatically presume that a law enforcement
officer is covered by the FECA?
§ 10.741   How
are benefits calculated in LEO claims?

Subpart
I—Information for Medical Providers

Medical
Records and Bills
§ 10.800   How
do providers enroll with OWCP for authorizations and billing?
§ 10.801   How
are medical bills to be submitted?
§ 10.802   How
should an employee prepare and submit requests for reimbursement for
medical expenses, transportation costs, loss of wages, and incidental
expenses?
§ 10.803   What
are the time limitations on OWCP's payment of bills?

Medical
Fee Schedule
§ 10.805   What
services are covered by the OWCP fee schedule?
§ 10.806   How
are the maximum fees defined?
§ 10.807   How
are payments for particular services calculated?
§ 10.808   Does
the fee schedule apply to every kind of procedure?
§ 10.809   How
are payments for medicinal drugs determined?
§ 10.810   How
are payments for inpatient medical services determined?
§ 10.811   When
and how are fees reduced?
§ 10.812   If
OWCP reduces a fee, may a provider request reconsideration of the
reduction?
§ 10.813   If
OWCP reduces a fee, may a provider bill the claimant for the
balance?

Exclusion
of Providers
§ 10.815   What
are the grounds for excluding a provider from payment under the
FECA?
§ 10.816   What
will cause OWCP to automatically exclude a physician or other provider of
medical services and supplies?
§ 10.817   How
are OWCP's exclusion procedures initiated?
§ 10.818   How
is a provider notified of OWCP's intent to exclude him or her?
§ 10.819   What
requirements must the provider's answer and OWCP's decision
meet?
§ 10.820   How
can an excluded provider request a hearing?
§ 10.821   How
are hearings assigned and scheduled?
§ 10.822   How
are subpoenas or advisory opinions obtained?
§ 10.823   How
will the administrative law judge conduct the hearing and issue the
recommended decision?
§ 10.824   How
does the recommended decision become final?
§ 10.825   What
are the effects of exclusion?
§ 10.826   How
can an excluded provider be reinstated?

Subpart
J—Death Gratuity
§ 10.900   What
is the death gratuity under this subpart?
§ 10.901   Which
employees are covered under this subpart?
§ 10.902   Does
every employee's death due to injuries incurred in connection with his or
her service with an Armed Force in a contingency operation qualify for the
death gratuity?
§ 10.903   Is
the death gratuity payment applicable retroactively?
§ 10.904   Does
a death as a result of occupational disease qualify for payment of the
death gratuity?
§ 10.905   If
an employee incurs a covered injury in connection with his or her service
with an Armed Force in a contingency operation but does not die of the
injury until years later, does the death qualify for payment of the death
gratuity?
§ 10.906   What
special statutory definitions apply to survivors under this
subpart?
§ 10.907   What
order of precedence will OWCP use to determine which survivors are
entitled to receive the death gratuity payment under this
subpart?
§ 10.908   Can
an employee designate alternate beneficiaries to receive a portion of the
death gratuity payment?
§ 10.909   How
does an employee designate a variation in the order or percentage of
gratuity payable to survivors and how does the employee designate
alternate beneficiaries?
§ 10.910   What
if a person entitled to a portion of the death gratuity payment dies after
the death of the covered employee but before receiving his or her portion
of the death gratuity?
§ 10.911   How
is the death gratuity payment process initiated?
§ 10.912   What
is required to establish a claim for the death gratuity payment?
§ 10.913   In
what situations will OWCP consider that an employee incurred injury in
connection with his or her service with an Armed Force in a contingency
operation?
§ 10.914   What
are the responsibilities of the employing agency in the death gratuity
payment process?
§ 10.915   What
are the responsibilities of OWCP in the death gratuity payment
process?
§ 10.916   How
is the amount of the death gratuity calculated?

Authority: 5
U.S.C. 301, 8102a, 8103, 8145 and 8149; 31 U.S.C. 3716 and 3717;
Reorganization Plan No. 6 of 1950, 15 FR 3174, 64 Stat. 1263; Secretary of
Labor's Order No. 10-2009, 74 FR 218.

Source: 76
FR 37903, June 28, 2011, unless otherwise noted.

Back to
Top

Subpart A—General Provisions

Back to
Top

Introduction

Back to
Top

§ 10.0   What are the
provisions of the FECA, in general?

The Federal Employees' Compensation Act (FECA) as amended (5 U.S.C.
8101 et seq. ) provides for the
payment of workers' compensation benefits to civilian officers and
employees of all branches of the Government of the United States. The
regulations in this part describe the rules for filing, processing, and
paying claims for benefits under the FECA. Proceedings under the FECA are
non-adversarial in nature.

(a) The FECA has been amended and extended a number of times to provide
workers' compensation benefits to volunteers in the Civil Air Patrol (5
U.S.C. 8141), members of the Reserve Officers' Training Corps (5 U.S.C.
8140), Peace Corps Volunteers (5 U.S.C. 8142), Job Corps enrollees and
Volunteers in Service to America (5 U.S.C. 8143), members of the National
Teachers Corps (5 U.S.C. 8143a), certain student employees (5 U.S.C. 5351
and 8144), certain law enforcement officers not employed by the United
States (5 U.S.C. 8191-8193), and various other classes of persons who
provide or have provided services to the Government of the United
States.

(b) The FECA provides for payment of several types of benefits,
including compensation for wage loss, schedule awards, medical and related
benefits, and vocational rehabilitation services for conditions resulting
from injuries sustained in performance of duty while in service to the
United States.

(c) The FECA also provides for payment of monetary compensation to
specified survivors of an employee whose death resulted from a
work-related injury and for payment of certain burial expenses subject to
the provisions of 5 U.S.C. 8134.

(d) All types of benefits and conditions of eligibility listed in this
section are subject to the provisions of the FECA and of this part. This
section shall not be construed to modify or enlarge upon the provisions of
the FECA.

Back to
Top

§ 10.1   What rules
govern the administration of the FECA and this chapter?

In accordance with 5 U.S.C. 8145 and Secretary's Order 5-96, the
responsibility for administering the FECA, except for 5 U.S.C. 8149 as it
pertains to the Employees' Compensation Appeals Board, has been delegated
to the Director of the Office of Workers' Compensation Programs (OWCP).
Except as otherwise provided by law, the Director, OWCP and his or her
designees have the exclusive authority to administer, interpret and
enforce the provisions of the Act.

Back to
Top

§ 10.2   What do these
regulations contain?

This part 10 sets forth the regulations governing administration of all
claims filed under the FECA, except to the extent specified in certain
particular provisions. Its provisions are intended to assist persons
seeking compensation benefits under the FECA, as well as personnel in the
various Federal agencies and the Department of Labor who process claims
filed under the FECA or who perform administrative functions with respect
to the FECA. This part 10 applies to part 25 of this chapter except as
modified by part 25. The various subparts of this part contain the
following:

(a) Subpart A. The general
statutory and administrative framework for processing claims under the
FECA. It contains a statement of purpose and scope, together with
definitions of terms, descriptions of basic forms, information about the
disclosure of OWCP records, and a description of rights and penalties
under the FECA, including convictions for fraud.

(b) Subpart B. The rules for
filing notices of injury and claims for benefits under the FECA. It also
addresses evidence and burden of proof, as well as the process of making
decisions concerning eligibility for benefits.

(c) Subpart C. The rules
governing claims for and payment of continuation of pay.

(d) Subpart D. The rules
governing emergency and routine medical care, second opinion and referee
medical examinations directed by OWCP, and medical reports and records in
general. It also addresses the kinds of treatment which may be authorized
and how medical bills are paid.

(e) Subpart E. The rules
relating to the payment of monetary compensation benefits for disability,
impairment and death. It includes the provisions for identifying and
processing overpayments of compensation.

(f) Subpart F. The rules
governing the payment of continuing compensation benefits. It includes
provisions concerning the employee's and the employer's responsibilities
in returning the employee to work. It also contains provisions governing
reports of earnings and dependents, recurrences, and reduction and
termination of compensation benefits.

(g) Subpart G. The rules
governing the appeals of decisions under the FECA. It includes provisions
relating to hearings, reconsiderations, and appeals before the Employees'
Compensation Appeals Board.

(h) Subpart H. The rules
concerning legal representation and for adjustment and recovery from a
third party. It also contains provisions relevant to three groups of
employees whose status requires special application of the provisions of
the FECA: Federal grand and petit jurors, Peace Corps volunteers, and non-
Federal law enforcement officers.

(i) Subpart I. Information for
medical providers. It includes rules for medical reports, medical bills,
and the OWCP medical fee schedule, as well as the provisions for exclusion
of medical providers.

(j) Subpart J. Death Gratuity.
The rules relating to the payment of the death gratuity benefit under 5
U.S.C. 8102a.

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§ 10.3   Have the
collection of information requirements of this part been approved by the
Office of Management and Budget (OMB)?

The collection of information requirements in this part have been
approved by OMB and assigned OMB control numbers 1240-0001, 1240-0007,
1240-0008, 1240-0009, 1240-0012, 1240-0013, 1240-0015, 1240-0016,
1240-0017, 1240-0018, 1240-0019, 1240-0022, 1240-0044, 1240-0045,
1240-0046, 1240-0047, 1240-0049, 1240-0050 and 1240-0051.

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Definitions and Forms

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§ 10.5   What definitions
apply to the regulations in this subchapter?

Certain words and phrases found in this part are defined in this
section or in the FECA. Some other words and phrases that are used only in
limited situations are defined in the later subparts of the regulations in
this subchapter.

(a) Benefits or Compensation in the regulations in this
subchapter means Compensation as defined by the FECA at 5 U.S.C. 8101(12),
which is the money OWCP pays to or on behalf of a beneficiary from the
Employees' Compensation Fund. The terms Benefits and Compensation include
payments for lost wages, loss of wage-earning capacity, and permanent
physical impairment. The terms Benefits and Compensation also include the
money paid to beneficiaries for an employee's death, including both death
benefits and any death gratuity benefit. These two terms also include any
other amounts paid out of the Employees' Compensation Fund for such things
as medical treatment, medical examinations conducted at the request of
OWCP as part of the claims adjudication process, vocational rehabilitation
services under 5 U.S.C. 8111, services of an attendant and funeral
expenses under 5 U.S.C. 8134, but do not include continuation of pay as
provided by 5 U.S.C. 8118.

(b) Beneficiary means an
individual who is entitled to a benefit under the FECA and this part.

(c) Claim means a written
assertion of an individual's entitlement to benefits under the FECA,
submitted in a manner authorized by this part.

(d) Claimant means an
individual whose claim has been filed.

(e) Director means the Director
of OWCP or a person designated to carry out his or her functions.

(f) Disability means the
incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or
total.

(g) Earnings from employment or
self-employment means:

(1) Gross earnings or wages before any deductions and includes the
value of subsistence, quarters, reimbursed expenses and any other goods or
services received in kind as remuneration; or

(2) A reasonable estimate of the cost to have someone else perform the
duties of an individual who accepts no remuneration. Neither lack of
profits, nor the characterization of the duties as a hobby, removes an
unremunerated individual's responsibility to report the estimated cost to
have someone else perform his or her duties.

(h) Employee means, but is not
limited to, an individual who fits within one of the following listed
groups:

(1) A civil officer or employee in any branch of the Government of the
United States, including an officer or employee of an instrumentality
wholly owned by the United States pursuant to 5 U.S.C. 8101(1)(A);

(2) An individual rendering personal service to the United States
similar to the service of a civil officer or employee of the United
States, without pay or for nominal pay, when a statute authorizes the
acceptance or use of the service, or authorizes payment of travel or other
expenses of the individual pursuant to 5 U.S.C. 8101(1)(B);

(3) An individual, other than an independent contractor or an
individual employed by an independent contractor, employed on the
Menominee Indian Reservation in Wisconsin in operations conducted under a
statute relating to Tribal timber and logging operations on that
reservation pursuant to 5 U.S.C. 8101(1)(C);

(4) An individual appointed to a position on the office staff of a
former President under section 1(b) of the Act of August 25, 1958 (72
Stat. 838) pursuant to 5 U.S.C. 8101(1)(E); or

(5) An individual selected and serving as a Federal petit or grand
juror pursuant to 5 U.S.C. 8101(1)(F).

(i) Employer or Agency means any civil agency or
instrumentality of the United States Government, or any other
organization, group or institution employing an individual defined as an
“employee” by this section. These terms also refer to officers and
employees of an employer having responsibility for the supervision,
direction or control of employees of that employer as an “immediate
superior,” and to other employees designated by the employer to carry out
the functions vested in the employer under the FECA and this part,
including officers or employees delegated responsibility by an employer
for authorizing medical treatment for injured employees.

(j) Entitlement means
entitlement to benefits as determined by OWCP under the FECA and the
procedures described in this part.

(k) FECA means the Federal
Employees' Compensation Act, as amended.

(l) Hospital services means
services and supplies provided by hospitals within the scope of their
practice as defined by State law.

(m) Impairment means any
anatomic or functional abnormality or loss. A permanent impairment is any
such abnormality or loss after maximum medical improvement has been
achieved.

(n) Knowingly means with
knowledge, consciously, willfully or intentionally.

(o) Medical services means
services and supplies provided by or under the supervision of a physician.
Reimbursable chiropractic services are limited to physical examinations
(and related laboratory tests), x-rays performed to diagnose a subluxation
of the spine and treatment consisting of manual manipulation of the spine
to correct a subluxation.

(p) Medical support services
means services, drugs, supplies and appliances provided by a person other
than a physician or hospital.

(q) Occupational disease or
illness means a condition produced by the work environment over a
period longer than a single workday or shift.

(r) OWCP means the Office of
Workers' Compensation Programs.

(s) Pay rate for compensation
purposes means the employee's pay, as determined under 5 U.S.C.
8114, at the time of injury, the time disability begins or the time
compensable disability recurs if the recurrence begins more than six
months after the injured employee resumes regular full-time employment
with the United States, whichever is greater, except as otherwise
determined under 5 U.S.C. 8113 with respect to any period.

(t) Physician means an
individual defined as such in 5 U.S.C. 8101(2), except during the period
for which his or her license to practice medicine has been suspended or
revoked by a State licensing or regulatory authority.

(u) Qualified hospital means
any hospital licensed as such under State law which has not been excluded
under the provisions of subpart I of this part. Except as otherwise
provided by regulation, a qualified hospital shall be deemed to be
designated or approved by OWCP.

(v) Qualified physician means
any physician who has not been excluded under the provisions of subpart I
of this part. Except as otherwise provided by regulation, a qualified
physician shall be deemed to be designated or approved by OWCP.

(w) Qualified provider of medical
support services or supplies means any person, other than a
physician or a hospital, who provides services, drugs, supplies and
appliances for which OWCP makes payment, who possesses any applicable
licenses required under State law, and who has not been excluded under the
provisions of subpart I of this part.

(x) Recurrence of disability
means an inability to work after an employee has returned to work, caused
by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure
to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee's physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or
her established physical limitations. A recurrence of disability does not
apply when a light-duty assignment is withdrawn for reasons of misconduct,
non-performance of job duties or other downsizing or where a loss of
wage-earning capacity determination as provided by 5 U.S.C. 8115 is in
place.

(y) Recurrence of medical
condition means a documented need for further medical treatment
after release from treatment for the accepted condition or injury when
there is no accompanying work stoppage. Continuous treatment for the
original condition or injury is not considered a “need for further medical
treatment after release from treatment,” nor is an examination without
treatment.

(z) Representative means an
individual or law firm properly authorized by a claimant in writing to act
for the claimant in connection with a claim or proceeding under the FECA
or this part.

(aa) Student means an
individual defined at 5 U.S.C. 8101(17). Two terms used in that particular
definition are further defined as follows:

(1) Additional type of educational or
training institution means a technical, trade, vocational, business
or professional school accredited or licensed by the United States
Government or a State Government or any political subdivision thereof
providing courses of not less than three months duration, that prepares
the individual for a livelihood in a trade, industry, vocation or
profession.

(2) Year beyond the high school
level means:

(i) The 12-month period beginning the month after the individual
graduates from high school, provided he or she had indicated an intention
to continue schooling within four months of high school graduation, and
each successive 12-month period in which there is school attendance or the
payment of compensation based on such attendance; or

(ii) If the individual has indicated that he or she will not continue
schooling within four months of high school graduation, the 12-month
period beginning with the month that the individual enters school to
continue his or her education, and each successive 12-month period in
which there is school attendance or the payment of compensation based on
such attendance.

(bb) Subluxation means an
incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to
an individual trained in the reading of x-rays.

(cc) Surviving spouse means the
husband or wife living with or dependent for support upon a deceased
employee at the time of his or her death, or living apart for reasonable
cause or because of the deceased employee's desertion, unless otherwise
defined under the FECA for the specific benefit such as the FECA death
gratuity at 5 U.S.C. 8102a.

(dd) Temporary aggravation of a
pre-existing condition means that factors of employment have
directly caused that condition to be more severe for a limited period of
time and have left no greater impairment than existed prior to the
employment injury.

(ee) Traumatic injury means a
condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift. Such condition must
be caused by external force, including stress or strain, which is
identifiable as to time and place of occurrence and member or function of
the body affected.

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§ 10.6   What special
statutory definitions apply to dependents and survivors?

(a) 5 U.S.C. 8133 provides that certain benefits are payable to certain
enumerated survivors of employees who have died from an injury sustained
in the performance of duty.

(b) 5 U.S.C. 8148 also provides that certain other benefits may be
payable to certain family members of employees who have been incarcerated
due to a felony conviction.

(c) 5 U.S.C. 8110(b) further provides that any employee who is found to
be eligible for a basic benefit shall be entitled to have such basic
benefit augmented at a specified rate for certain persons who live in the
beneficiary's household or who are dependent upon the beneficiary for
support.

(d) 5 U.S.C. 8101, 8110, 8133, and 8148, which define the nature of
such survivorship or dependency necessary to qualify a beneficiary for a
survivor's benefit or an augmented benefit, apply to the provisions of
this part but not to the death gratuity provided under subpart J.

(e) 5 U.S.C. 8102a provides the definitions for survivorship or
dependency necessary to qualify as a beneficiary for a death gratuity
benefit as well as allowing half the death gratuity benefit to be paid to
alternate beneficiary.

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§ 10.7   What forms are
needed to process claims under the FECA?

(a) Notice of injury, claims and certain specified reports shall be
made on forms prescribed by OWCP. Employers shall not modify these forms
or use substitute forms. Employers are expected to maintain an adequate
supply of the basic forms needed for the proper recording and reporting of
injuries.

Form No.

Title

(1) CA-1

Federal Employee's Notice of
Traumatic Injury and Claim for Continuation of
Pay/Compensation.

(2) CA-2

Notice of Occupational Disease and
Claim for Compensation.

(3) CA-2a

Notice of Employee's Recurrence of
Disability and Claim for Pay/Compensation.

(4) CA-3

Report of Work Status.

(5) CA-5

Claim for Compensation by Widow,
Widower and/or Children.

(6) CA-5b

Claim for Compensation by Parents,
Brothers, Sisters, Grandparents, or Grandchildren.

(7) CA-6

Official Superior's Report of
Employee's Death.

(8) CA-7

Claim for Compensation Due to
Traumatic Injury or Occupational Disease.

(9) CA-7a

Time Analysis Form.

(10) CA-7b

Leave Buy Back (LBB)
Worksheet/Certification and Election.

(11) CA-16

Authorization of Examination and/or
Treatment.

(12) CA-17

Duty Status Report.

(13) CA-20

Attending Physician's Report.

(14) CA-20a

Attending Physician's Supplemental
Report.

(15) CA-40

Designation of a Recipient of the
Federal Employees' Compensation Act Death Gratuity Payment under
Section 1105 of Public Law 110-181 (Section 8102a).

(16) CA-41

Claim for Survivor Benefits Under
the Federal Employees' Compensation Act Section 8102a Death
Gratuity.

(17) CA-42

Official Notice of Employees' Death
for Purposes of FECA Section 8102a Death Gratuity.

(18) CA-1108

Statement of Recovery Letter with
Long Form.

(19) CA-1122

Statement of Recovery Letter with
Short Form.

(b) Copies of the forms listed in this paragraph are available for
public inspection at the Office of Workers' Compensation Programs, U.S.
Department of Labor, Washington, DC 20210. They may also be obtained from
district offices, employers ( i.e., safety and health offices,
supervisors), and the Internet, at http://www.dol.gov.

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Information in Program Records

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§ 10.10   Are all
documents relating to claims filed under the FECA considered
confidential?

All records relating to claims for benefits, including copies of such
records maintained by an employer, are considered confidential and may not
be released, inspected, copied or otherwise disclosed except as provided
in the Freedom of Information Act and the Privacy Act of 1974 or under the
routine uses provided by DOL/GOVT-1 if such release is consistent with the
purpose for which the record was created.

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§ 10.11   Who maintains
custody and control of FECA records?

All records relating to claims for benefits filed under the FECA,
including any copies of such records maintained by an employing agency,
are covered by the government-wide Privacy Act system of records entitled
DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal Employees'
Compensation Act File). This system of records is maintained by and under
the control of OWCP, and, as such, all records covered by DOL/GOVT-1 are
official records of OWCP. The protection, release, inspection and copying
of records covered by DOL/GOVT-1 shall be accomplished in accordance with
the rules, guidelines and provisions of this part, as well as those
contained in 29 CFR parts 70 and 71, and with the notice of the system of
records and routine uses published in the Federal
Register. All questions relating to access/disclosure, and/or
amendment of FECA records maintained by OWCP or the employing agency, are
to be resolved in accordance with this section.

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§ 10.12   How may a FECA
claimant or beneficiary obtain copies of protected records?

(a) A claimant seeking copies of his or her official FECA file should
address a request to the District Director of the OWCP office having
custody of the file. A claimant seeking copies of FECA-related documents
in the custody of the employer should follow the procedures established by
that agency.

(b) (1) While an employing agency may establish procedures that an
injured employee or beneficiary should follow in requesting access to
documents it maintains, any decision issued in response to such a request
must comply with the rules and regulations of the Department of Labor
which govern all other aspects of safeguarding these records.

(2) No employing agency has the authority to issue determinations with
respect to requests for the correction or amendment of records contained
in or covered by DOL/GOVT-1. That authority is within the exclusive
control of OWCP. Thus, any request for correction or amendment received by
an employing agency must be referred to OWCP for review and decision.

(3) Any administrative appeal taken from a denial issued by the
employing agency or OWCP shall be filed with the Solicitor of Labor in
accordance with 29 CFR 71.7 and 71.9.

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§ 10.13   What process is
used by a person who wants to correct FECA-related documents?

Any request to amend a record covered by DOL/GOVT-1 should be directed
to the district office having custody of the official file. No employer
has the authority to issue determinations with regard to requests for the
correction of records contained in or covered by DOL/GOVT-1. Any request
for correction received by an employer must be referred to OWCP for review
and decision.

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Rights and Penalties

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§ 10.15   May
compensation rights be waived?

No employer or other person may require an employee or other claimant
to enter into any agreement, either before or after an injury or death, to
waive his or her right to claim compensation under the FECA. No waiver of
compensation rights shall be valid.

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§ 10.16   What criminal
and civil penalties may be imposed in connection with a claim under the
FECA?

(a) A number of statutory provisions make it a crime to file a false or
fraudulent claim or statement with the Government in connection with a
claim under the FECA, or to wrongfully impede a FECA claim. Included among
these provisions are 18 U.S.C. 287, 1001, 1920, and 1922. Furthermore, a
civil action to recover benefits paid erroneously under the FECA may be
maintained under the False Claims Act, 31 U.S.C. 3729-3733. Enforcement of
such provisions that may apply to claims under the FECA is within the
jurisdiction of the Department of Justice.

(b) In addition, administrative proceedings may be initiated under the
Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801-12, to
impose civil penalties and assessments against persons who make, submit,
or present, or cause to be made, submitted or presented, false, fictitious
or fraudulent claims or written statements to OWCP in connection with a
claim under the FECA. The Department of Labor's regulations implementing
the PFRCA are found at 29 CFR part 22.

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§ 10.17   Is a
beneficiary who defrauds the Government in connection with a claim for
benefits still entitled to those benefits?

When a beneficiary either pleads guilty to or is found guilty on either
Federal or State criminal charges of defrauding the Federal Government in
connection with a claim for benefits, the beneficiary's entitlement to any
further compensation benefits will terminate effective the date of
conviction, which is the date of the verdict or, in the case of a plea
bargain, the date the claimant made the plea in open court (not the date
of sentencing or the date court papers were signed). The employing agency
may, upon request, be required to provide the documentation needed for
termination under this section. Termination of entitlement under this
section is not affected by any subsequent change in or recurrence of the
beneficiary's medical condition.

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§ 10.18   Can a
beneficiary who is incarcerated based on a felony conviction still receive
benefits?

(a) Whenever a beneficiary is incarcerated in a State or Federal jail,
prison, penal institution or other correctional facility due to a State or
Federal felony conviction, he or she forfeits all rights to compensation
benefits during the period of incarceration. A beneficiary's right to
compensation benefits for the period of his or her incarceration is not
restored after such incarceration ends, even though payment of
compensation benefits may resume. A beneficiary has an affirmative duty to
provide notice of any conviction and imprisonment. The employing agency
shall provide OWCP any information or documentation they may have
concerning such matters.

(b) If the beneficiary has eligible dependents, OWCP will pay
compensation to such dependents at a reduced rate during the period of his
or her incarceration, by applying the percentages of 5 U.S.C. 8133(a)(1)
through (5) to the beneficiary's gross current entitlement rather than to
the beneficiary's monthly pay.

(c) If OWCP's decision on entitlement is pending when the period of
incarceration begins, and compensation is due for a period of time prior
to such incarceration, payment for that period will only be made to the
beneficiary following his or her release.

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Subpart B—Filing Notices and Claims; Submitting
Evidence

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Notices and Claims for Injury, Disease, and
Death—Employee or Survivor's Actions

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§ 10.100   How and when
is a notice of traumatic injury filed?

(a) To claim benefits under the FECA, an employee who sustains a
work-related traumatic injury must give notice of the injury in writing on
Form CA-1, which may be obtained from the employer or from the Internet at
www.dol.gov under forms. The
employee must forward this notice to the employer. Another person,
including the employer, may give notice of injury on the employee's
behalf. The person submitting a notice shall include the Social Security
Number (SSN) of the injured employee. All such notices should be submitted
electronically wherever feasible to facilitate processing of such claims.
All employers that currently do not have such capability should create
such a method by December 31, 2012.

(b) For injuries sustained on or after September 7, 1974, a notice of
injury must be filed within three years of the injury. (The form contains
the necessary words of claim.) The requirements for filing notice are
further described in 5 U.S.C. 8119. Also see § 10.205 concerning time
requirements for filing claims for continuation of pay.

(1) If the claim is not filed within three years, compensation may
still be allowed if notice of injury was given within 30 days or the
employer had actual knowledge of the injury or death within 30 days after
occurrence. This knowledge may consist of written records or verbal
notification. An entry into an employee's medical record may also satisfy
this requirement if it is sufficient to place the employer on notice of a
possible work-related injury or disease.

(2) OWCP may excuse failure to comply with the three-year time
requirement because of truly exceptional circumstances (for example, being
held prisoner of war).

(3) The claimant may withdraw his or her claim (but not the notice of
injury) by so requesting in writing to OWCP at any time before OWCP
determines eligibility for benefits. Any continuation of pay (COP) granted
to an employee after a claim is withdrawn must be charged to sick or
annual leave, or considered an overpayment of pay consistent with 5 U.S.C.
5584, at the employee's option.

(c) However, in cases of latent disability, the time for filing claim
does not begin to run until the employee has a compensable disability and
is aware, or reasonably should have been aware, of the causal relationship
between the disability and the employment (see 5 U.S.C. 8122(b)).

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§ 10.101   How and when
is a notice of occupational disease filed?

(a) To claim benefits under the FECA, an employee who has a disease
which he or she believes to be work-related must give notice of the
condition in writing on Form CA-2, which may be obtained from the employer
or from the Internet at www.dol.gov under forms. The employee
must forward this notice to the employer. Another person, including the
employer, may do so on the employee's behalf. The person submitting a
notice shall include the Social Security Number (SSN) of the injured
employee. All such notices should be submitted electronically wherever
feasible to facilitate processing of such claims. All employers that
currently do not have such capability should create such a method by
December 31, 2012. The claimant may withdraw his or her claim (but not the
notice of occupational disease) by so requesting in writing to OWCP at any
time before OWCP determines eligibility for benefits.

(b) For occupational diseases sustained as a result of exposure to
injurious work factors that occurs on or after September 7, 1974, a notice
of occupational disease must be filed within three years of the onset of
the condition. (The form contains the necessary words of claim.) The
requirements for timely filing are described in § 10.100(b)(1)
through (3).

(c) However, in cases of latent disability, the time for filing claim
does not begin to run until the employee has a compensable disability and
is aware, or reasonably should have been aware, of the causal relationship
between the disability and the employment (see 5 U.S.C. 8122(b)).

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§ 10.102   How and when
is a claim for wage loss compensation filed?

(a) Form CA-7 is used to claim compensation for periods of disability
not covered by COP.

(1) An employee who is disabled with loss of pay for more than three
calendar days due to an injury, or someone acting on his or her behalf,
must file Form CA-7 before compensation can be paid.

(2) The employee shall complete the front of Form CA-7 and submit the
form to the employer for completion and transmission to OWCP. The form
should be completed as soon as possible, but no more than 14 calendar days
after the date pay stops due to the injury or disease. All such notices
should be submitted electronically wherever feasible to facilitate
processing of such claims. All employers that currently do not have such
capability should create such a method by December 31, 2012.

(3) The requirements for filing claims are further described in 5
U.S.C. 8121.

(b) Form CA-7 is also used to claim compensation for additional periods
of disability following the initial injury.

(1) It is the employee's responsibility to submit Form CA-7. Without
receipt of such claim, OWCP has no knowledge of continuing wage loss.
Therefore, while disability continues, the employee should submit a claim
on Form CA-7 each two weeks until otherwise instructed by OWCP.

(2) The employee shall complete the front of Form CA-7 and submit the
form to the employer for completion and transmission to OWCP.

(3) The employee is responsible for submitting, or arranging for the
submittal of, medical evidence to OWCP which establishes both that
disability continues and that the disability is due to the work-related
injury. Form CA-20a is submitted with Form CA-7 for this purpose.

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§ 10.103   How and when
is a claim for permanent impairment filed?

Form CA-7 is used to claim compensation for impairment to a body part
covered under the schedule established by 5 U.S.C. 8107. All such notices
should be submitted electronically wherever feasible to facilitate
processing of such claims. All employers that currently do not have such
capability should create such a method by December 31, 2012. If Form CA-7
has already been filed to claim disability compensation, an employee may
file a claim for such impairment by sending a letter to OWCP which
specifies the nature of the benefit claimed. OWCP may create a form
specifically for schedule award claims; if that form is created, only that
form may be used to file a claim under 5 U.S.C. 8107.

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§ 10.104   How and when
is a claim for recurrence filed?

(a) A recurrence should be reported on Form CA-2a if that recurrence
causes the employee to lose time from work and incur a wage loss, or if
the employee experiences a renewed need for treatment after previously
being released from care. However, a notice of recurrence should not be
filed when a new injury, new occupational disease, or new event
contributing to an already-existing occupational disease has occurred. In
these instances, the employee should file Form CA-1 or CA-2.

(b) The employee has the burden of establishing by the weight of
reliable, probative and substantial evidence that the recurrence of
disability is causally related to the original injury.

(1) The employee must include a detailed factual statement as described
on Form CA-2a. The employer may submit comments concerning the employee's
statement.

(2) The employee should arrange for the submittal of a detailed medical
report from the attending physician as described on Form CA-2a. The
employee should also submit, or arrange for the submittal of, similar
medical reports for any examination and/or treatment received after
returning to work following the original injury.

(c) A claim for recurrence of disability is not available where OWCP
has issued a loss of wage-earning capacity determination. Under that
circumstance, the only method for claiming additional wage loss
compensation is through a request to modify that determination. However,
OWCP is not precluded from adjudicating a limited period of disability
following the issuance of a loss of wage-earning capacity decision, such
as where an employee has a demonstrated need for surgery.

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§ 10.105   How and when
is a notice of death and claim for benefits filed?

(a) If an employee dies from a work-related traumatic injury or an
occupational disease, any survivor may file a claim for death benefits
using Form CA-5 or CA-5b, which may be obtained from the employer or from
the Internet at www.dol.gov under
forms. The survivor must provide this notice in writing and forward it to
the employer. Another person, including the employer, may do so on the
survivor's behalf. The survivor may also submit the completed Form CA-5 or
CA-5b directly to OWCP. The survivor shall disclose the SSNs of all
survivors on whose behalf claim for benefits is made in addition to the
SSN of the deceased employee. All such notices should be submitted
electronically wherever feasible to facilitate processing of such claims.
All employers that currently do not have such capability should create
such a method by December 31, 2012. The survivor may withdraw his or her
claim (but not the notice of death) by so requesting in writing to OWCP at
any time before OWCP determines eligibility for benefits.

(b) For deaths that occur on or after September 7, 1974, a notice of
death must be filed within three years of the death. The form contains the
necessary words of claim. The requirements for timely filing are described
in § 10.100(b)(1) through (3).

(c) However, in cases of death due to latent disability, the time for
filing the claim does not begin to run until the survivor is aware, or
reasonably should have been aware, of the causal relationship between the
death and the employment (see 5 U.S.C. 8122(b)).

(d) The filing of a notice of injury or occupational disease will
satisfy the time requirements for a death claim based on the same injury
or occupational disease. If an injured employee or someone acting on the
employee's behalf does not file a claim before the employee's death, the
right to claim compensation for disability other than medical expenses
ceases and does not survive.

(e) A survivor must be alive to receive any payment; there is no vested
right to such payment. A report as described in § 10.414 of this part
must be filed once each year to support continuing payments of
compensation.

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Notices and Claims for Injury, Disease, and
Death—Employer's Actions

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§ 10.110   What should
the employer do when an employee files a notice of traumatic injury or
occupational disease?

(a) The employer shall complete the agency portion of Form CA-1 (for
traumatic injury) or CA-2 (for occupational disease) no more than 10
working days after receipt of notice from the employee. The employer shall
also complete the Receipt of Notice and give it to the employee, along
with copies of both sides of Form CA-1 or Form CA-2.

(b) The employer must complete and transmit the form to OWCP within 10
working days after receipt of notice from the employee if the injury or
disease will likely result in:

(1) A medical charge against OWCP;

(2) Disability for work beyond the day or shift of injury;

(3) The need for more than two appointments for medical examination
and/or treatment on separate days, leading to time loss from work;

(4) Future disability;

(5) Permanent impairment; or

(6) Continuation of pay pursuant to 5 U.S.C. 8118.

(c) The employer should not wait for submittal of supporting evidence
before sending the form to OWCP.

(d) If none of the conditions in paragraph (b) of this section applies,
the Form CA-1 or CA-2 shall be retained as a permanent record in the
Employee Medical Folder in accordance with the guidelines established by
the Office of Personnel Management.

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§ 10.111   What should
the employer do when an employee files an initial claim for compensation
due to disability or permanent impairment?

(a) Except for employees covered by paragraph (d) of this section, when
an employee is disabled by a work-related injury and loses pay for more
than three calendar days, or has a permanent impairment or serious
disfigurement as described in 5 U.S.C. 8107, the employer shall furnish
the employee with Form CA-7 for the purpose of claiming compensation.

(b) If the employee is receiving continuation of pay (COP), the
employer should give Form CA-7 to the employee by the 30th day of the COP
period and submit the form to OWCP by the 40th day of the COP period. If
the employee has not returned the form to the employer by the 40th day of
the COP period, the employer should ask him or her to submit it as soon as
possible.

(c) Upon receipt of Form CA-7 from the employee, or someone acting on
his or her behalf, the employer shall complete the appropriate portions of
the form. As soon as possible, but no more than five working days after
receipt from the employee, the employer shall forward the completed Form
CA-7 and any accompanying medical report to OWCP.

(d) Postal Service employees are not entitled to compensation or
continuation of pay for the waiting period, the first three days of
disability. Such employees may use annual leave, sick leave or leave
without pay during that period; however, if the disability exceeds 14
days, the employee may have their sick leave or annual leave reinstated or
receive pay for the time spent on leave without pay. This waiting period
does not apply to the provision of medical care, and days of time loss for
medical treatment only with no work-related disability do not count as
part of the waiting period. A Postal Service employee seeking wage loss
compensation for this period should utilize Form CA-7 to claim such
benefits.

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§ 10.112   What should
the employer do when an employee files a claim for continuing compensation
due to disability?

(a) If the employee continues in a leave-without-pay status due to a
work-related injury after the period of compensation initially claimed on
Form CA-7, the employer shall furnish the employee with another Form CA-7
for the purpose of claiming continuing compensation.

(b) Upon receipt of Form CA-7 from the employee, or someone acting on
his or her behalf, the employer shall complete the appropriate portions of
the form. As soon as possible, but no more than five working days after
receipt from the employee, the employer shall forward the completed Form
CA-7 and any accompanying medical report to OWCP.

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§ 10.113   What should
the employer do when an employee dies from a work-related injury or
disease?

(a) The employer shall immediately report a death due to a work-related
traumatic injury or occupational disease to OWCP by telephone, telegram,
or facsimile (fax). No more than 10 working days after notification of the
death, the employer shall complete and send Form CA-6 to OWCP.

(b) When possible, the employer shall furnish a Form CA-5 or CA-5b to
all persons likely to be entitled to compensation for death of an
employee. The employer should also supply information about completing and
filing the form.

(c) The employer shall promptly transmit Form CA-5 or CA-5b to OWCP.
The employer shall also promptly transmit to OWCP any other claim or paper
submitted which appears to claim compensation on account of death.

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Evidence and Burden of Proof

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§ 10.115   What evidence
is needed to establish a claim?

Forms CA-1, CA-2, CA-5 and CA-5b describe the basic evidence required.
OWCP may send a request for additional evidence to the claimant and to his
or her representative, if any; however the burden of proof still remains
with the claimant. Evidence should be submitted in writing. The evidence
submitted must be reliable, probative and substantial. Each claim for
compensation must meet five requirements before OWCP can accept it. These
requirements, which the employee must establish to meet his or her burden
of proof, are as follows:

(a) The claim was filed within the time limits specified by the
FECA;

(b) The injured person was, at the time of injury, an employee of the
United States as defined in 5 U.S.C. 8101(1) and § 10.5(h) of this
part;

(c) The fact that an injury, disease or death occurred;

(d) The injury, disease or death occurred while the employee was in the
performance of duty; and

(e) The medical condition for which compensation or medical benefits is
claimed is causally related to the claimed injury, disease or death.
Neither the fact that the condition manifests itself during a period of
Federal employment, nor the belief of the claimant that factors of
employment caused or aggravated the condition, is sufficient in itself to
establish causal relationship.

(f) In all claims, the claimant is responsible for submitting, or
arranging for submittal of, a medical report from the attending physician.
For wage loss benefits, the claimant must also submit medical evidence
showing that the condition claimed is disabling. The rules for submitting
medical reports are found in §§ 10.330 through 10.333.

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§ 10.116   What
additional evidence is needed in cases based on occupational disease?

(a) The employee must submit the specific detailed information
described on Form CA-2 and should submit any checklist (Form CA-35, A-H)
provided by the employer. OWCP has developed these checklists to address
particular occupational diseases. The medical report should also include
the information specified on the checklist for the particular disease
claimed.

(b) The employer should submit the specific detailed information
described on Form CA-2 and on any checklist pertaining to the claimed
disease.

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§ 10.117   What happens
if, in any claim, the employer contests any of the facts as stated by the
claimant?

(a) An employer who has reason to disagree with any aspect of the
claimant's report shall submit a statement to OWCP that specifically
describes the factual allegation or argument with which it disagrees and
provide evidence or argument to support its position. The employer may
include supporting documents such as witness statements, medical reports
or records, or any other relevant information.

(b) Any such statement shall be submitted to OWCP with the notice of
traumatic injury or death, or within 30 calendar days from the date notice
of occupational disease or death is received from the claimant. If the
employer does not submit a written explanation to support the
disagreement, OWCP may accept the claimant's report of injury as
established. The employer may not use a disagreement with an aspect of the
claimant's report to delay forwarding the claim to OWCP or to compel or
induce the claimant to change or withdraw the claim.

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§ 10.118   Does the
employer participate in the claims process in any other way?

(a) The employer is responsible for submitting to OWCP all relevant and
probative factual and medical evidence in its possession, or which it may
acquire through investigation or other means. Such evidence may be
submitted at any time.

(b) The employer may ascertain the events surrounding an injury and the
extent of disability where it appears that an employee who alleges total
disability may be performing other work, or may be engaging in activities
which would indicate less than total disability. This authority is in
addition to that given in § 10.118(a). However, the provisions of the
Privacy Act apply to any endeavor by the employer to ascertain the facts
of the case (see §§ 10.10 and 10.11).

(c) The employer does not have the right, except as provided in subpart
C of this part, to actively participate in the claims adjudication
process.

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§ 10.119   What action
will OWCP take with respect to information submitted by the employer?

OWCP will consider all evidence submitted appropriately, and OWCP will
inform the employee, the employee's representative, if any, and the
employer of any action taken. Where an employer contests a claim within 30
days of the initial submittal and the claim is later approved, OWCP will
notify the employer of the rationale for approving the claim.

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§ 10.120   May a claimant
submit additional evidence?

A claimant or a person acting on his or her behalf may submit to OWCP
at any time any other evidence relevant to the claim.

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§ 10.121   What happens
if OWCP needs more evidence from the claimant?

If the claimant submits factual evidence, medical evidence, or both,
but OWCP determines that this evidence is not sufficient to meet the
burden of proof, OWCP will inform the claimant of the additional evidence
needed. The claimant will be allowed at least 30 days to submit the
evidence required. OWCP is not required to notify the claimant a second
time if the evidence submitted in response to its first request is not
sufficient to meet the burden of proof.

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Decisions on Entitlement to Benefits

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§ 10.125   How does OWCP
determine entitlement to benefits?

(a) In reaching any decision with respect to FECA coverage or
entitlement, OWCP considers the claim presented by the claimant, the
report by the employer, and the results of such investigation as OWCP may
deem necessary.

(b) OWCP claims staff apply the law, the regulations, and its
procedures to the facts as reported or obtained upon investigation. They
also apply decisions of the Employees' Compensation Appeals Board and
administrative decisions of OWCP as set forth in FECA Program
Memoranda.

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§ 10.126   What does the
decision contain?

The decision shall contain findings of fact and a statement of reasons.
It is accompanied by information about the claimant's appeal rights, which
may include the right to a hearing, a reconsideration, and/or a review by
the Employees' Compensation Appeals Board. (See subpart G of this
part.)

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§ 10.127   To whom is the
decision sent?

A copy of the decision shall be mailed to the employee's last known
address. If the employee has a designated representative before OWCP, a
copy of the decision will also be mailed to the representative. A copy of
the decision will also be sent to the employer.

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Subpart C—Continuation of Pay

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§ 10.200   What is
continuation of pay?

(a) For most employees who sustain a traumatic injury, the FECA
provides that the employer must continue the employee's regular pay during
any periods of resulting disability, up to a maximum of 45 calendar days.
This is called continuation of pay, or COP. The employer, not OWCP, pays
COP. Unlike wage loss benefits, COP is subject to taxes and all other
payroll deductions that are made from regular income.

(b) The employer must continue the pay of an employee, except for
Postal Service employees pursuant to 5 U.S.C. 8117 and as provided below
in paragraph (c) of this section, who is eligible for COP, and may not
require the employee to use his or her own sick or annual leave, unless
the provisions of § 10.200(c), § 10.220, or § 10.222 apply.
However, while continuing the employee's pay, the employer may controvert
the employee's COP entitlement pending a final determination by OWCP. OWCP
has the exclusive authority to determine questions of entitlement and all
other issues relating to COP.

(c) Postal Service employees are not entitled to continuation of pay
for the first 3 days of temporary disability and may use annual, sick or
leave without pay during that period, except that if the disability
exceeds 14 days or is followed by permanent disability, the Postal Service
employee may have that leave restored.

(d) The FECA excludes certain persons from eligibility for COP. COP
cannot be authorized for members of these excluded groups, which include
but are not limited to: persons rendering personal service to the United
States similar to the service of a civil officer or employee of the United
States, without pay or for nominal pay; volunteers (for instance, in the
Civil Air Patrol and Peace Corps); Job Corps and Youth Conservation Corps
enrollees; individuals in work- study programs, and grand or petit jurors
(unless otherwise Federal employees).

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Eligibility for COP

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§ 10.205   What
conditions must be met to receive COP?

(a) To be eligible for COP, a person must:

(1) Have a “traumatic injury” as defined at § 10.5(ee) which is
job-related and the cause of the disability, and/or the cause of lost time
due to the need for medical examination and treatment;

(2) File Form CA-1 within 30 days of the date of the injury (but if
that form is not available, using another form would not alone preclude
receipt); and

(3) Begin losing time from work due to the traumatic injury within 45
days of the injury.

(b) OWCP may find that the employee is not entitled to COP for other
reasons consistent with the statute (see § 10.220).

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§ 10.206   May an
employee who uses leave after an injury later decide to use COP
instead?

On Form CA-1, an employee may elect to use accumulated sick or annual
leave, or leave advanced by the agency, instead of electing COP. The
employee can change the election between leave and COP for prospective
periods at any point while eligibility for COP remains. The employee may
also change the election for past periods and request COP in lieu of leave
already taken for the same period. In either situation, the following
provisions apply:

(a) The request must be made to the employer within one year of the
date the leave was used or the date of the written approval of the claim
by OWCP (if written approval is issued), whichever is later.

(b) Where the employee is otherwise eligible, the agency shall restore
leave taken in lieu of any of the 45 COP days. Where any of the 45 COP
days remain unused, the agency shall continue pay prospectively.

(c) The use of leave may not be used to delay or extend the 45-day COP
period or to otherwise affect the time limitation as provided by 5 U.S.C.
8117. Therefore, any leave used during the period of eligibility counts
towards the 45-day maximum entitlement to COP.

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§ 10.207   May an
employee who returns to work, then stops work again due to the effects of
the injury, receive COP?

If the employee recovers from disability and returns to work, then
becomes disabled again and stops work, the employer shall pay any of the
45 days of entitlement to COP not used during the initial period of
disability where:

(a) The employee completes Form CA-2a and elects to receive regular
pay;

(b) OWCP did not deny the original claim for disability;

(c) The disability recurs and the employee stops work within 45 days of
the time the employee first returned to work following the initial period
of disability; and

(d) Pay has not been continued for the entire 45 days.

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Responsibilities

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§ 10.210   What are the
employee's responsibilities in COP cases?

An employee who sustains a traumatic injury which he or she considers
disabling, or someone authorized to act on his or her behalf, must take
the following actions to ensure continuing eligibility for COP. The
employee must:

(a) Complete and submit Form CA-1 to the employing agency as soon as
possible, but no later than 30 days from the date the traumatic injury
occurred.

(b) Ensure that medical evidence supporting disability resulting from
the claimed traumatic injury, including a statement as to when the
employee can return to his or her date of injury job, is provided to the
employer within 10 calendar days after filing the claim for COP.

(c) Ensure that relevant medical evidence is submitted to OWCP, and
cooperate with OWCP in developing the claim.

(d) Ensure that the treating physician specifies work limitations and
provides them to the employer and/or representatives of OWCP.

(e) Provide to the treating physician a description of any specific
alternative positions offered the employee, and ensure that the treating
physician responds promptly to the employer and/or OWCP, with an opinion
as to whether and how soon the employee could perform that or any other
specific position.

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§ 10.211   What are the
employer's responsibilities in COP cases?

Once the employer learns of a traumatic injury sustained by an
employee, it shall:

(a) Provide a Form CA-1 and Form CA-16 to authorize medical care in
accordance with § 10.300. Failure to do so may mean that OWCP will
not uphold any termination of COP by the employer.

(b) Advise the employee of the right to receive COP, and the need to
elect among COP, annual or sick leave or leave without pay, for any period
of disability.

(c) Inform the employee of any decision to controvert COP and/or
terminate pay, and the basis for doing so.

(d) Complete Form CA-1 and transmit it, along with all other available
pertinent information, (including the basis for any controversion), to
OWCP within 10 working days after receiving the completed form from the
employee.

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Calculation of COP

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§ 10.215   How does OWCP
compute the number of days of COP used?

COP is payable for a maximum of 45 calendar days, and every day used is
counted toward this maximum. The following rules apply:

(a) Time lost on the day or shift of the injury does not count toward
COP. (Instead, the agency must keep the employee in a pay status for that
period);

(b) The first COP day is the first day disability begins following the
date of injury (providing it is within the 45 days following the date of
injury), except where the injury occurs before the beginning of the work
day or shift, in which case the date of injury is charged to COP;

(c) Any part of a day or shift (except for the day of the injury)
counts as a full day toward the 45 calendar day total;

(d) Regular days off are included if COP has been used on the regular
work days immediately preceding or following the regular day(s) off, and
medical evidence supports disability; and

(e) Leave used during a period when COP is otherwise payable is counted
toward the 45-day COP maximum as if the employee had been in a COP
status.

(f) For employees with part-time or intermittent schedules, all
calendar days on which medical evidence indicates disability are counted
as COP days, regardless of whether the employee was or would have been
scheduled to work on those days. The rate at which COP is paid for these
employees is calculated according to § 10.216(b).

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§ 10.216   How is the pay
rate for COP calculated?

The employer shall calculate COP using the period of time and the
weekly pay rate.

(a) The pay rate for COP purposes is equal to the employee's regular
“weekly” pay (the average of the weekly pay over the preceding 52
weeks).

(1) The pay rate excludes overtime pay, but includes other applicable
extra pay except to the extent prohibited by law.

(2) Changes in pay or salary (for example, promotion, demotion,
within-grade increases, termination of a temporary detail, etc. ) which would have otherwise
occurred during the 45-day period are to be reflected in the weekly pay
determination.

(b) The weekly pay for COP purposes is determined according to the
following formulas:

(1) For full or part-time workers (permanent or temporary) who work the
same number of hours each week of the year (or of the appointment), the
weekly pay rate is the hourly pay rate (A) in effect on the date of injury
multiplied by (×) the number of hours worked each week (B): A × B = Weekly
Pay Rate.

(2) For part-time workers (permanent or temporary) who do not work the
same number of hours each week, but who do work each week of the year (or
period of appointment), the weekly pay rate is an average of the weekly
earnings, established by dividing (÷) the total earnings (excluding
overtime) from the year immediately preceding the injury (A) by the number
of weeks (or partial weeks) worked in that year (B): A ÷ B = Weekly Pay
Rate.

(3) For intermittent and seasonal workers, whether permanent or
temporary, who do not work either the same number of hours or every week
of the year (or period of appointment), the weekly pay rate is the average
weekly earnings established by dividing (÷) the total earnings during the
full 12-month period immediately preceding the date of injury (excluding
overtime) (A), by the number of weeks (or partial weeks) worked during
that year (B) (that is, A ÷ B); or 150 times the average daily wage earned
in the employment during the days employed within the full year
immediately preceding the date of injury divided by 52 weeks, whichever is
greater.

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§ 10.217   Is COP charged
if the employee continues to work, but in a different job that pays
less?

If the employee cannot perform the duties of his or her regular
position, but instead works in another job with different duties with no
loss in pay, then COP is not chargeable. COP must be paid and the days
counted against the 45 days authorized by law whenever an actual reduction
of pay results from the injury, including a reduction of pay for the
employee's normal administrative workweek that results from a change or
diminution in his or her duties following an injury. However, this does
not include a reduction of pay that is due solely to an employer being
prohibited by law from paying extra pay to an employee for work he or she
does not actually perform.

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Controversion and Termination of COP

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§ 10.220   When is an
employer not required to pay COP?

An employer shall continue the regular pay of an eligible employee
without a break in time for up to 45 calendar days, except when, and only
when:

(a) The disability was not caused by a traumatic injury;

(b) The employee is not a citizen of the United States or Canada;

(c) No written claim was filed within 30 days from the date of
injury;

(d) The injury was not reported until after employment has been
terminated;

(e) The injury occurred off the employing agency's premises and was
otherwise not within the performance of official duties;

(f) The injury was caused by the employee's willful misconduct, intent
to injure or kill himself or herself or another person, or was proximately
caused by intoxication by alcohol or illegal drugs; or

(g) Work did not stop until more than 45 days following the injury.

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§ 10.221   How is a claim
for COP controverted?

When the employer stops an employee's pay for one of the reasons cited
in § 10.220, the employer must controvert the claim for COP on Form
CA-1, explaining in detail the basis for the refusal. The final
determination on entitlement to COP always rests with OWCP.

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§ 10.222   When may an
employer terminate COP which has already begun?

(a) Where the employer has continued the pay of the employee, it may be
stopped only when at least one of the following circumstances is
present:

(1) Medical evidence which on its face supports disability due to a
work-related injury is not received within 10 calendar days after the
claim is submitted (unless the employer's own investigation shows
disability to exist). Where the medical evidence is later provided,
however, COP shall be reinstated retroactive to the date of
termination;

(2) The medical evidence from the treating physician shows that the
employee is not disabled from his or her regular position;

(3) Medical evidence from the treating physician shows that the
employee is not totally disabled, and the employee refuses a written offer
of a suitable alternative position which is approved by the attending
physician. If OWCP later determines that the position was not suitable,
OWCP will direct the employer to grant the employee COP retroactive to the
termination date.

(4) The employee returns to work with no loss of pay;

(5) The employee's period of employment expires or employment is
otherwise terminated (as established prior to the date of injury);

(6) OWCP directs the employer to stop COP; and/or

(7) COP has been paid for 45 calendar days.

(b) An employer may not interrupt or stop COP to which the employee is
otherwise entitled because of a disciplinary action, unless a preliminary
notice was issued to the employee before the date of injury and the action
becomes final or otherwise takes effect during the COP period.

(c) An employer cannot otherwise stop COP unless it does so for one of
the reasons found in this section or § 10.220. Where an employer
stops COP, it must file a controversion with OWCP, setting forth the basis
on which it terminated COP, no later than the effective date of the
termination.

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§ 10.223   Are there
other circumstances under which OWCP will not authorize payment of
COP?

When OWCP finds that an employee or his or her representative refuses
or obstructs a medical examination required by OWCP, the right to COP is
suspended until the refusal or obstruction ceases. COP already paid or
payable for the period of suspension is forfeited. If already paid, the
COP may be charged to annual or sick leave or considered an overpayment of
pay consistent with 5 U.S.C. 5584.

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§ 10.224   What happens
if OWCP finds that the employee is not entitled to COP after it has been
paid?

Where OWCP finds that the employee is not entitled to COP after it has
been paid, the employee may chose to have the time charged to annual or
sick leave, or considered an overpayment of pay under 5 U.S.C. 5584. The
employer must correct any deficiencies in COP as directed by OWCP.

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Subpart D—Medical and Related Benefits

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Emergency Medical Care

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§ 10.300   What are the
basic rules for authorizing emergency medical care?

(a) When an employee sustains a work-related traumatic injury that
requires medical examination, medical treatment, or both, the employer
shall authorize such examination and/or treatment by issuing a Form CA-16.
This form may be used for occupational disease or illness only if the
employer has obtained prior permission from OWCP.

(b) The employer shall issue Form CA-16 within four hours of the
claimed injury. If the employer gives verbal authorization for such care,
he or she should issue a Form CA-16 within 48 hours. The employer is not
required to issue a Form CA-16 more than one week after the occurrence of
the claimed injury. The employer may not authorize examination or medical
or other treatment in any case that OWCP has disallowed.

(c) Form CA-16 must contain the full name and address of the qualified
physician or qualified medical facility authorized to provide service. The
authorizing official must sign and date the form and must state his or her
title. Form CA-16 authorizes treatment for 60 days from the date of
injury, unless OWCP terminates the authorization sooner.

(d) The employer should advise the employee of the right to his or her
initial choice of physician. The employer shall allow the employee to
select a qualified physician, after advising him or her of those
physicians excluded under subpart I of this part. The physician may be in
private practice, including a health maintenance organization (HMO), or
employed by a Federal agency such as the Department of the Army, Navy, Air
Force, or Veterans Affairs. Any qualified physician may provide initial
treatment of a work-related injury in an emergency. See also
§ 10.825(b).

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§ 10.301   May the
physician designated on Form CA-16 refer the employee to another medical
specialist or medical facility?

The physician designated on Form CA-16 may refer the employee for
further examination, testing, or medical care. OWCP will pay this
physician or facility's bill on the authority of Form CA-16. The employer
should not issue a second Form CA-16.

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§ 10.302   Should the
employer authorize medical care if he or she doubts that the injury
occurred, or that it is work-related?

If the employer doubts that the injury occurred, or that it is
work-related, he or she should authorize medical care by completing Form
CA-16 and checking block 6B of the form. If the medical and factual
evidence sent to OWCP shows that the condition treated is not
work-related, OWCP will notify the employee, the employer, and the
physician or hospital that OWCP will not authorize payment for any further
treatment.

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§ 10.303   Should the
employer use a Form CA-16 to authorize medical testing when an employee is
exposed to a workplace hazard just once?

(a) Simple exposure to a workplace hazard, such as an infectious agent,
does not constitute a work-related injury entitling an employee to medical
treatment under the FECA. The employer therefore should not use a Form
CA-16 to authorize medical testing for an employee who has merely been
exposed to a workplace hazard, unless the employee has sustained an
identifiable injury or medical condition as a result of that exposure.
OWCP will authorize preventive treatment only under certain well-defined
circumstances (see § 10.313).

(b) Employers may be required under other statutes or regulations to
provide their employees with medical testing and/or other services in
situations described in paragraph (a) of this section. For example,
regulations issued by the Occupational Safety and Health Administration at
29 CFR chapter XVII require employers to provide their employees with
medical consultations and/or examinations when they either exhibit
symptoms consistent with exposure to a workplace hazard, or when an
identifiable event such as a spill, leak or explosion occurs and results
in the likelihood of exposure to a workplace hazard. In addition, 5 U.S.C.
7901 authorizes employers to establish health programs whose staff can
perform tests for workplace hazards, counsel employees for exposure or
feared exposure to such hazards, and provide health care screening and
other associated services.

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§ 10.304   Are there any
exceptions to these procedures for obtaining medical care?

In cases involving emergencies or unusual circumstances, OWCP may
authorize treatment in a manner other than as stated in this subpart.

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Medical Treatment and Related Issues

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§ 10.310   What are the
basic rules for obtaining medical care?

(a) The employee is entitled to receive all medical services,
appliances or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related
injury. Billing for these services is described in subpart I of this part.
The employee need not be disabled to receive such treatment. If there is
any doubt as to whether a specific service, appliance or supply is
necessary to treat the work-related injury, the employee should consult
OWCP prior to obtaining it through the automated authorization process
described in § 10.800. OWCP may also utilize the services of a field
nurse to facilitate and coordinate medical care for the employee. OWCP may
contract with a specific provider or providers to supply such services or
appliances, including durable medical equipment and prescribed
medications.

(b) Any qualified physician or qualified hospital may provide such
services, appliances and supplies. Non-physician providers such as
physicians' assistants, nurse practitioners and physical therapists may
also provide authorized services for injured employees to the extent
allowed by applicable Federal and State law.

(c) Where OWCP has not contracted for the provision of appliances or
supplies, only a supplier of durable medical equipment that is registered
in Medicare's Durable Medical Equipment, Prosthetics, Orthotics and
Supplies Accreditation process may furnish such appliances and supplies.
OWCP may apply a test of cost-effectiveness to appliances and supplies,
may offset the cost of prior rental payments against a future purchase
price, and may provide refurbished appliances where appropriate.

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§ 10.311   What are the
special rules for the services of chiropractors?

(a) The services of chiropractors that may be reimbursed are limited by
the FECA to treatment to correct a spinal subluxation. The costs of
physical and related laboratory tests performed by or required by a
chiropractor to diagnose such a subluxation are also payable.

(b) In accordance with 5 U.S.C. 8101(3), a diagnosis of spinal
“subluxation as demonstrated by X-ray to exist” must appear in the
chiropractor's report before OWCP can consider payment of a chiropractor's
bill.

(c) A chiropractor may interpret his or her x-rays to the same extent
as any other physician. To be given any weight, the medical report must
state that x-rays support the finding of spinal subluxation. OWCP will not
necessarily require submittal of the x-ray, or a report of the x-ray, but
the report must be available for submittal on request.

(d) A chiropractor may also provide services in the nature of physical
therapy under the direction of, and as prescribed by, a qualified
physician.

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§ 10.312   What are the
special rules for the services of clinical psychologists?

A clinical psychologist may serve as a physician only within the scope
of his or her practice as defined by State law. Therefore, a clinical
psychologist may not serve as a physician for conditions that include a
physical component unless the applicable State law allows clinical
psychologists to treat physical conditions. A clinical psychologist may
also perform testing, evaluation and other services under the direction of
a qualified physician.

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§ 10.313   Will OWCP pay
for preventive treatment?

The FECA does not authorize payment for preventive measures such as
vaccines and inoculations, and in general, preventive treatment may be a
responsibility of the employing agency under the provisions of 5 U.S.C.
7901 (see § 10.303). However, OWCP can authorize treatment for the
following conditions, even though such treatment is designed, in part, to
prevent further injury:

(a) Complications of preventive measures which are provided or
sponsored by the agency, such as an adverse reaction to prophylactic
immunization.

(b) Actual or probable exposure to a known contaminant due to an
injury, thereby requiring disease-specific measures against infection.
Examples include the provision of tetanus antitoxin or booster toxoid
injections for puncture wounds; administration of rabies vaccine for a
bite from a rabid or potentially rabid animal; or appropriate measures
where exposure to human immunodeficiency virus (HIV) has occurred.

(c) Conversion of tuberculin reaction from negative to positive
following exposure to tuberculosis in the performance of duty. In this
situation, the appropriate therapy may be authorized.

(d) Where injury to one eye has resulted in loss of vision, periodic
examination of the uninjured eye to detect possible sympathetic
involvement of the uninjured eye at an early stage.

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§ 10.314   Will OWCP pay
for the services of an attendant?

Yes, OWCP will pay for the services of an attendant where the need for
such services has been medically documented. In the exercise of the
discretion afforded by 5 U.S.C. 8111(a), the Director has determined that,
except where attendant service payments were being made prior to January
4, 1999, direct payments to the claimant to cover such services will no
longer be made. Rather, the cost of providing attendant services will be
paid under section 8103 of the Act, and medical bills for these services
will be considered under § 10.801, so long as the personal care
services have been determined to be medically necessary and are provided
by a home health aide, licensed practical nurse, or similarly trained
individual, subject to requirements specified by OWCP. By paying for the
services under section 8103, OWCP can better determine whether the
services provided are necessary, and what type of provider is most
qualified to provide adequate care to meet the needs of the injured
employee. In addition, a system requiring the personal care provider to
submit a bill to OWCP, where the amount billed will be subject to OWCP's
fee schedule, will result in greater fiscal accountability.

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§ 10.315   Will OWCP pay
for transportation to obtain medical treatment?

(a) The employee is entitled to reimbursement of reasonable and
necessary expenses, including transportation needed to obtain authorized
medical services, appliances or supplies. To determine what is a
reasonable distance to travel, OWCP will consider the availability of
services, the employee's condition, and the means of transportation.
Generally, a roundtrip distance of up to 100 miles is considered a
reasonable distance to travel. Travel should be undertaken by the shortest
route, and if practical, by public conveyance. If the medical evidence
shows that the employee is unable to use these means of transportation,
OWCP may authorize travel by taxi or special conveyance.

(b) For non-emergency medical treatment, if roundtrip travel of more
than 100 miles is contemplated, or air transportation or overnight
accommodations will be needed, the employee must submit a written request
to OWCP for prior authorization with information describing the
circumstances and necessity for such travel expenses. OWCP will approve
the request if it determines that the travel expenses are reasonable and
necessary, and are incident to obtaining authorized medical services,
appliances or supplies. Requests for travel expenses that are often
approved include those resulting from referrals to a specialist for
further medical treatment, and those involving air transportation of an
employee who lives in a remote geographical area with limited local
medical services.

(c) If a claimant disagrees with the decision of OWCP that requested
travel expenses are either not reasonable or necessary, or are not
incident to obtaining authorized medical services or supplies, he or she
may utilize the appeals process described in subpart G of this part.

(d) The standard form designated for medical travel refund requests is
Form OWCP-957 and must be used to seek reimbursement under this section.
This form can be obtained from OWCP.

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§ 10.316   After
selecting a treating physician, may an employee choose to be treated by
another physician instead?

(a) When the physician originally selected to provide treatment for a
work-related injury refers the employee to a specialist for further
medical care, the employee need not consult OWCP for approval. In all
other instances, however, the employee must submit a written request to
OWCP with his or her reasons for desiring a change of physician.

(b) OWCP will approve the request if it determines that the reasons
submitted are sufficient. Requests that are often approved include those
for transfer of care from a general practitioner to a physician who
specializes in treating conditions like the work-related one, or the need
for a new physician when an employee has moved. The employer may not
authorize a change of physicians.

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Directed Medical Examinations

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§ 10.320   Can OWCP
require an employee to be examined by another physician?

OWCP sometimes needs a second opinion from a medical specialist. The
employee must submit to examination by a qualified physician as often and
at such times and places as OWCP considers reasonably necessary. The
employee may have a qualified physician, paid by him or her, present at
such examination. However, the employee is not entitled to have anyone
else present at the examination unless there is rationalized medical
evidence that establishes that someone else is needed in the room or OWCP
decides that exceptional circumstances exist. Where an employee requires
an accommodation, such as where a hearing-impaired employee needs an
interpreter, the presence of an interpreter will be allowed. Also, OWCP
may send a case file for second opinion review where actual examination is
not needed, or where the employee is deceased.

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§ 10.321   What happens
if the opinion of the physician selected by OWCP differs from the opinion
of the physician selected by the employee?

(a) If one medical opinion holds more probative value, OWCP will base
its determination of entitlement on that medical conclusion (see
§ 10.502). A difference in medical opinion sufficient to be
considered a conflict occurs when two reports of virtually equal weight
and rationale reach opposing conclusions (see James P. Roberts, 31 ECAB 1010
(1980)).

(b) If a conflict exists between the medical opinion of the employee's
physician and the medical opinion of either a second opinion physician or
an OWCP medical adviser or consultant, OWCP shall appoint a third
physician to make an examination (see § 10.502). This is called a
referee or impartial examination. OWCP will select a physician who is
qualified in the appropriate specialty and who has had no prior connection
with the case. The employee is not entitled to have anyone present at the
examination unless OWCP decides that exceptional circumstances exist. For
example, where a hearing-impaired employee needs an interpreter, the
presence of an interpreter would be allowed. Also, a case file may be sent
for referee or impartial medical review where there is no need for an
actual examination, or where the employee is deceased.

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§ 10.322   Who pays for
second opinion and referee examinations?

OWCP will pay second opinion and referee medical specialists directly.
OWCP will reimburse the employee all necessary and reasonable expenses
incident to such an examination, including transportation costs and actual
wages lost for the time needed to submit to an examination required by
OWCP.

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§ 10.323   What are the
penalties for failing to report for or obstructing a second opinion or
referee examination?

(a) If an employee refuses to submit to or in any way obstructs an
examination required by OWCP, including testing such as functional
capacity determinations conducted in connection with an OWCP-directed
medical examination, his or her right to compensation under the FECA is
suspended under 5 U.S.C. 8123(d) until such refusal or obstruction stops.
The action of the employee's representative is considered to be the action
of the employee for purposes of this section. The employee will forfeit
compensation otherwise paid or payable under the FECA for the period of
the refusal or obstruction, and any compensation already paid for that
period will be declared an overpayment and will be subject to recovery
pursuant to 5 U.S.C. 8129.

(b) If the employee does not report for an OWCP-directed examination or
in any way obstructs this examination, he or she may provide an
explanation to OWCP within 14 days. If this explanation does not establish
good cause for the employee's actions, entitlement to compensation will be
suspended in accordance with 5 U.S.C. 8123(d). Should the employee
subsequently agree to attend the examination or cease the obstruction (as
expressed in writing or by telephone documented on Form CA-110), OWCP will
restore any periodic benefits to which the employee is entitled when the
employee actually reports for and cooperates with the examination. Payment
is retroactive to the date the employee agreed to attend or cease
obstruction of the examination.

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§ 10.324   May an
employer require an employee to undergo a physical examination in
connection with a work-related injury?

The employer may have authority independent of the FECA to require the
employee to undergo a medical examination to determine whether he or she
meets the medical requirements of the position held or can perform the
duties of that position. Nothing in the FECA or in this part affects such
authority. However, no agency-required examination or related activity
shall interfere with the employee's initial choice of physician or the
provision of any authorized examination or treatment, including the
issuance of Form CA-16.

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Medical Reports

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§ 10.330   What are the
requirements for medical reports?

In all cases reported to OWCP, a medical report from the attending
physician is required. This report should include:

(a) Dates of examination and treatment;

(b) History given by the employee;

(c) Physical findings;

(d) Results of diagnostic tests;

(e) Diagnosis;

(f) Course of treatment;

(g) A description of any other conditions found but not due to the
claimed injury;

(h) The treatment given or recommended for the claimed injury;

(i) The physician's opinion, with medical reasons, as to causal
relationship between the diagnosed condition(s) and the factors or
conditions of the employment;

(j) The extent of disability affecting the employee's ability to work
due to the injury;

(k) The prognosis for recovery; and

(l) All other material findings.

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§ 10.331   How and when
should the medical report be submitted?

(a) Form CA-16 may be used for the initial medical report; Form CA-20
may be used for the initial report and for subsequent reports; and Form
CA-20a may be used where continued compensation is claimed. Use of medical
report forms is not required, however. The report may also be made in
narrative form on the physician's letterhead stationery. The report should
bear the physician's signature or signature stamp. OWCP may require an
original signature on the report.

(b) The report shall be submitted directly to OWCP as soon as possible
after medical examination or treatment is received, either by the employee
or the physician. (See also § 10.210.) The employer may request a
copy of the report from OWCP. The employer should use Form CA-17 to obtain
interim reports concerning the duty status of an employee with a disabling
injury.

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§ 10.332   What
additional medical information will OWCP require to support continuing
payment of benefits?

In all cases of serious injury or disease, especially those requiring
hospital treatment or prolonged care, OWCP will request detailed narrative
reports from the attending physician at periodic intervals. The physician
will be asked to describe continuing medical treatment for the condition
accepted by OWCP, a prognosis, a description of work limitations, if any,
and the physician's opinion as to the continuing causal relationship
between the employee's condition and factors of his or her Federal
employment.

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§ 10.333   What
additional medical information will OWCP require to support a claim for a
schedule award?

To support a claim for a schedule award, a medical report must contain
accurate measurements of the function of the organ or member, in
accordance with the American Medical Association's Guides to the Evaluation of Permanent
Impairment as described in § 10.404. These measurements may
include: The actual degree of loss of active or passive motion or
deformity; the amount of atrophy; the decrease, if any, in strength; the
disturbance of sensation; pain due to nerve impairment; the diagnosis of
the condition; and functional impairment ratings.

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Medical Bills

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§ 10.335   How are
medical bills submitted?

Usually, medical providers submit bills directly to OWCP or to a bill
processing agent designated by OWCP. The rules for submitting and paying
bills are stated in subpart I of this part. An employee claiming
reimbursement of medical expenses should submit an itemized bill as
described in § 10.802.

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§ 10.336   What are the
time frames for submitting bills?

To be considered for payment, bills must be submitted by the end of the
calendar year after the year when the expense was incurred, or by the end
of the calendar year after the year when OWCP first accepted the claim as
compensable, whichever is later.

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§ 10.337   If an employee
is only partially reimbursed for a medical expense, must the provider
refund the balance of the amount paid to the employee?

(a) The OWCP fee schedule sets maximum limits on the amounts payable
for many services (see § 10.805). The employee may be only partially
reimbursed for medical expenses because the amount he or she paid to the
medical provider for a service exceeds the maximum allowable charge set by
the OWCP fee schedule.

(b) If this happens, OWCP shall advise the employee of the maximum
allowable charge for the service in question and of his or her
responsibility to ask the provider to refund to the employee, or credit to
the employee's account, the amount he or she paid which exceeds the
maximum allowable charge. The provider may request reconsideration of the
fee determination as set forth in §§ 10.812 and 10.813.

(c) If the provider does not refund to the employee or credit to his or
her account the amount of money paid in excess of the charge which OWCP
allows, the employee should submit documentation of the attempt to obtain
such refund or credit to OWCP. OWCP may make reasonable reimbursement to
the employee after reviewing the facts and circumstances of the case.

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Subpart E—Compensation and Related Benefits

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Compensation for Disability and
Impairment

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§ 10.400   What is total
disability?

(a) Permanent total disability is presumed to result from the loss of
use of both hands, both arms, both feet, or both legs, or the loss of
sight of both eyes. 5 U.S.C. 8105(b). However, the presumption of
permanent total disability as a result of such loss may be rebutted by
evidence to the contrary, such as evidence of continued ability to work
and to earn wages despite the loss.

(b) Temporary total disability is defined as the inability to return to
the position held at the time of injury or earn equivalent wages, or to
perform other gainful employment, due to the work-related injury. Except
as presumed under paragraph (a) of this section, an employee's disability
status is always considered temporary pending return to work.

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§ 10.401   When and how
is compensation for total disability paid?

(a) Compensation is payable when an employee starts to lose pay if the
injury causes permanent disability or if pay loss continues for more than
14 calendar days. Otherwise, compensation is payable on the fourth day
after pay stops pursuant to 5 U.S.C. 8117(a). Compensation may not be paid
while an injured employee is in a continuation of pay status or receives
pay for leave or, for Postal Service employees, for the first three days
of temporary disability as described in 5 U.S.C. 8117(b) and
§ 10.200(c), except for medical or vocational rehabilitation
benefits.

(b) Compensation for total disability is payable at the rate of 662⁄3 percent of the pay
rate if the employee has no dependents, or 75 percent of the pay rate if
the employee has at least one dependent. (“Dependents” are defined at 5
U.S.C. 8110(a).)

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§ 10.402   What is
partial disability?

An injured employee who cannot return to the position held at the time
of injury (or earn equivalent wages) due to the work-related injury, but
who is not totally disabled for all gainful employment, is considered to
be partially disabled.

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§ 10.403   When and how
is compensation for partial disability paid?

(a) 5 U.S.C. 8115 outlines how compensation for partial disability is
determined. If the employee has actual earnings which fairly and
reasonably represent his or her wage-earning capacity, those earnings will
form the basis for payment of compensation for partial disability. (See
§§ 10.500 through 10.521 concerning return to work.) If the
employee's actual earnings do not fairly and reasonably represent his or
her wage-earning capacity, or if the employee has no actual earnings, OWCP
uses the factors stated in 5 U.S.C. 8115 to select a position which
represents his or her wage-earning capacity, which include the nature of
the injury, the degree of physical impairment, the usual employment, the
age of the employee, the employee's qualifications for other employment
and the availability of suitable employment. However, OWCP will not secure
employment for the employee in the position selected for establishing a
wage-earning capacity.

(b) Compensation for partial disability is payable as a percentage of
the difference between the employee's pay rate for compensation purposes
and the employee's wage-earning capacity. The percentage is 662⁄3 percent of this
difference if the employee has no dependents, or 75 percent of this
difference if the employee has at least one dependent.

(c) The formula which OWCP uses to compute the compensation payable for
partial disability employs the following terms: Pay rate for compensation
purposes, which is defined in § 10.5(s) of this part; current pay
rate, which means the salary or wages for the job held at the time of
injury at the time of the determination; and earnings, which means the
employee's actual earnings, or the salary or pay rate of the position
selected by OWCP as representing the employee's wage-earning capacity.

(d) The employee's wage-earning capacity in terms of percentage is
computed by dividing the employee's earnings by the current pay rate. The
comparison of earnings and “current” pay rate for the job held at the time
of injury need not be made as of the beginning of partial disability. OWCP
may use any convenient date for making the comparison as long as both wage
rates are in effect on the date used for comparison.

(e) The employee's wage-earning capacity in terms of dollars is
computed by first multiplying the pay rate for compensation purposes by
the percentage of wage-earning capacity. The resulting dollar amount is
then subtracted from the pay rate for compensation purposes to obtain the
employee's loss of wage-earning capacity.

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§ 10.404   When and how
is compensation for a schedule impairment paid?

Compensation is provided for specified periods of time for the
permanent loss or loss of use of certain members, organs and functions of
the body. Such loss or loss of use is known as permanent impairment.
Compensation for proportionate periods of time is payable for partial loss
or loss of use of each member, organ or function. 5 U.S.C. 8107(b)(19).
OWCP evaluates the degree of impairment to schedule members, organs and
functions as defined in 5 U.S.C. 8107 according to the standards set forth
in the specified (by OWCP) edition of the American Medical Association's
Guides to the Evaluation of Permanent
Impairment.

(a) 5 U.S.C. 8107(c) provides compensation for loss to the following
list of schedule members:

Member

Weeks

Arm

312

Leg

288

Hand

244

Foot

205

Eye

160

Thumb

75

First Finger lost

46

Great toe

38

Second finger

30

Third finger

25

Toe other than great
toe

16

Fourth finger

15

Hearing, one ear

52

Hearing, both ears

200

(b) Pursuant to the authority provided by 5 U.S.C. 8107(c)(22), the
Secretary has added the following organs to the compensation schedule for
injuries that were sustained on or after September 7, 1974, except that a
schedule award for the skin may be paid for injuries on or after September
11, 2001:

Member

Weeks

Breast (one)

52

Kidney (one)

156

Larynx

160

Lung (one)

156

Penis

205

Testicle (one)

52

Tongue

160

Ovary (one)

52

Uterus/cervix and
vulva/vagina

205

Skin

205

(c) Compensation for schedule awards is payable at 662⁄3 percent of the
employee's pay, or 75 percent of the pay when the employee has at least
one dependent.

(d) The period of compensation payable under 5 U.S.C. 8107(c) shall be
reduced by the period of compensation paid or payable under the schedule
for an earlier injury if:

(1) Compensation in both cases is for impairment of the same member or
function or different parts of the same member or function, or for
disfigurement; and

(2) OWCP finds that compensation payable for the later impairment in
whole or in part would duplicate the compensation payable for the
pre-existing impairment.

(e) Compensation not to exceed $3,500 may be paid for serious
disfigurement of the face, head or neck which is likely to handicap a
person in securing or maintaining employment. Under 5 U.S.C. 8107(21), a
disfigurement award may be paid concurrently with schedule awards.

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§ 10.405   Who is
considered a dependent in a claim based on disability or impairment?

(a) Dependents include a wife or husband; an unmarried child under 18
years of age; an unmarried child over 18 who is incapable of self-support;
a student, until he or she reaches 23 years of age or completes four years
of school beyond the high school level; or a wholly dependent parent.

(b) Augmented compensation payable for an unmarried child, which would
otherwise terminate when the child reached the age of 18, may be continued
while the child is a student as defined in 5 U.S.C. 8101(17).

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§ 10.406   What are the
maximum and minimum rates of compensation in disability cases?

(a) Compensation for total or partial disability may not exceed 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule. (Basic monthly pay does not include locality
adjustments.) However, this limit does not apply to disability sustained
in the performance of duty which was due to an assault which occurred
during an attempted assassination of a Federal official described under 18
U.S.C. 351(a) or 1751(a).

(b) Compensation for total disability may not be less than 75 percent
of the basic monthly pay of the first step of grade 2 of the General
Schedule or actual pay, whichever is less. (Basic monthly pay does not
include locality adjustments.)

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Compensation for Death

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§ 10.410   Who is
entitled to compensation in case of death, and what are the rates of
compensation payable in death cases?

(a) Pursuant to 5 U.S.C. 8133, benefits may be paid to eligible
dependents of an employee whose death results from an injury sustained in
the performance of duty. This benefit is separate and distinct from a
death gratuity benefit under 5 U.S.C. 8102a and subpart J of this
part.

(b) If there is no child entitled to compensation, the employee's
surviving spouse will receive compensation equal to 50 percent of the
employee's monthly pay until death or remarriage before reaching age 55.
Upon remarriage, the surviving spouse will be paid a lump sum equal to 24
times the monthly compensation payment (excluding compensation payable on
account of another individual) to which the surviving spouse was entitled
immediately before the remarriage. If remarriage occurs at age 55 or
older, the lump-sum payment will not be paid and compensation will
continue until death.

(c) If there is a child entitled to compensation, the compensation for
the surviving spouse will equal 45 percent of the employee's monthly pay
plus 15 percent for each child, but the total percentage may not exceed 75
percent.

(d) If there is a child entitled to compensation and no surviving
spouse, compensation for one child will equal 40 percent of the employee's
monthly pay. Fifteen percent will be awarded for each additional child,
not to exceed 75 percent, the total amount to be shared equally among all
children.

(e) If there is no child or surviving spouse entitled to compensation,
the parents will receive compensation equal to 25 percent of the
employee's monthly pay if one parent was wholly dependent on the employee
at the time of death and the other was not dependent to any extent, or 20
percent each if both were wholly dependent on the employee, or a
proportionate amount in the discretion of the Director if one or both were
partially dependent on the employee. If there is a child or surviving
spouse entitled to compensation, the parents will receive so much of the
compensation described in the preceding sentence as, when added to the
total percentages payable to the surviving spouse and children, will not
exceed a total of 75 percent of the employee's monthly pay.

(f) If there is no child, surviving spouse or dependent parent entitled
to compensation, the brothers, sisters, grandparents and grandchildren
will receive compensation equal to 20 percent of the employee's monthly
pay to such dependent if one was wholly dependent on the employee at the
time of death; or 30 percent if more than one was wholly dependent,
divided among such dependents equally; or 10 percent if no one was wholly
dependent but one or more was partly dependent, divided among such
dependents equally. If there is a child, surviving spouse or dependent
parent entitled to compensation, the brothers, sisters, grandparents and
grandchildren will receive so much of the compensation described in the
preceding sentence as, when added to the total percentages payable to the
children, surviving spouse and dependent parents, will not exceed a total
of 75 percent of the employee's monthly pay.

(g) A child, brother, sister or grandchild may be entitled to receive
death benefits until death, marriage, or reaching age 18. Regarding
entitlement after reaching age 18, refer to § 10.417.

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§ 10.411   What are the
maximum and minimum rates of compensation in death cases?

(a) Compensation for death may not exceed the employee's pay or 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule, except that compensation may exceed the employee's basic
monthly pay if such excess is created by authorized cost-of-living
increases. (Basic monthly pay does not include locality adjustments.)
However, the maximum limit does not apply when the death occurred during
an assassination of a Federal official described under 18 U.S.C. 351(a) or
18 U.S.C. 1751(a).

(b) Compensation for death is computed on a minimum pay rate equal to
the basic monthly pay of an employee at the first step of grade 2 of the
General Schedule. (Basic monthly pay does not include locality
adjustments.)

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§ 10.412   Will OWCP pay
the costs of burial and transportation of the remains?

In a case accepted for death benefits, OWCP will pay up to $800 for
funeral and burial expenses. When an employee's home is within the United
States and the employee dies outside the United States, or away from home
or the official duty station, an additional amount may be paid for
transporting the remains to the employee's home as set forth in 5 U.S.C.
8134. An additional amount of $200 is paid to the personal representative
of the decedent for reimbursement of the costs of terminating the
decedent's status as an employee of the United States in accordance with 5
U.S.C. 8133.

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§ 10.413   May a schedule
award be paid after an employee's death?

For a schedule award to be paid following the death of an employee, the
employee must have filed a valid claim specifically for a schedule award
prior to death; in addition, the employee must have died from a cause
other than the injury before the end of the period specified in the
schedule. The balance of the schedule award may be paid to an employee's
survivors pursuant to the proportions and order of precedence described in
5 U.S.C. 8109.

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§ 10.414   What reports
of dependents are needed in death cases?

If a beneficiary is receiving compensation benefits on account of an
employee's death, OWCP will ask him or her to complete a report once each
year on Form CA-12. The report requires the beneficiary to note changes in
marital status and dependents. If the beneficiary fails to submit the form
(or an equivalent written statement) within 30 days of the date of
request, OWCP shall suspend compensation until the requested form or
equivalent written statement is received. The suspension will include
compensation payable for or on behalf of another person (for example,
compensation payable to a widow on behalf of a child). When the form or
statement is received, compensation will be reinstated at the appropriate
rate retroactive to the date of suspension, provided the beneficiary is
entitled to such compensation.

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§ 10.415   What must a
beneficiary do if the number of beneficiaries decreases?

The circumstances under which compensation on account of death shall be
terminated are described in 5 U.S.C. 8133(b). A beneficiary in a claim for
death benefits should promptly notify OWCP of any event which would affect
his or her entitlement to continued compensation. The terms “marriage” and
“remarriage” include common-law marriage as recognized and defined by
State law in the State where the beneficiary resides. If a beneficiary, or
someone acting on his or her behalf, receives a check or electronic
payment which includes payment of compensation for any period after the
date when entitlement ended, he or she must promptly return such funds to
OWCP.

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§ 10.416   How does a
change in the number of beneficiaries affect the amount of compensation
paid to the other beneficiaries?

If compensation to a beneficiary is terminated, the amount of
compensation payable to one or more of the remaining beneficiaries may be
reapportioned. Similarly, the birth of a posthumous child may result in a
reapportionment of the amount of compensation payable to other
beneficiaries. The parent, or someone acting on the child's behalf, shall
promptly notify OWCP of the birth and submit a copy of the birth
certificate.

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§ 10.417   What reports
are needed when compensation payments continue for children over age
18?

(a) Compensation payable on behalf of a child, brother, sister, or
grandchild, which would otherwise end when the person reaches 18 years of
age, shall be continued if and for so long as he or she is not married and
is either a student as defined in 5 U.S.C. 8101(17), or physically or
mentally incapable of self-support.

(b) At least once each year, OWCP will ask a beneficiary receiving
compensation based on the student status of a dependent to provide proof
of continuing entitlement to such compensation, including certification of
school enrollment. The beneficiary is required to report any changes to
student status in the interim.

(c) Likewise, at least once each year unless otherwise provided in
paragraph (d) of this section, OWCP will ask a beneficiary or legal
guardian receiving compensation based on a dependent's physical or mental
inability to support himself or herself to submit a medical report
verifying that the dependent's medical condition persists and that it
continues to preclude self-support. If there is a change in that
condition, the beneficiary or legal guardian is required to immediately
report that change to OWCP.

(d) In the case of a dependent incapable of self support due to that
dependent's physical or mental disability where the status of that
dependent is unlikely to change, a beneficiary or legal guardian may
establish the permanency of that condition by submitting a well
rationalized medical report which describes that condition and the ongoing
prognosis of that condition. If the permanency of that condition is
established by such a report, OWCP will not seek further information
regarding that condition; however, if there is a change in that condition,
the beneficiary or legal guardian is required to immediately report that
change to OWCP.

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Adjustments to Compensation

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§ 10.420   How are
cost-of-living adjustments applied?

(a) In cases of disability, a beneficiary is eligible for
cost-of-living adjustments under 5 U.S.C. 8146a where injury-related
disability began more than one year prior to the date the cost-of-living
adjustment took effect. The employee's use of continuation of pay as
provided by 5 U.S.C. 8118, or of sick or annual leave, during any part of
the period of disability does not affect the computation of the one-year
period.

(b) Where an injury does not result in disability but compensation is
payable for permanent impairment of a covered member, organ or function of
the body, a beneficiary is eligible for cost-of-living adjustments under 5
U.S.C. 8146a where the award for such impairment began more than one year
prior to the date the cost-of-living adjustment took effect.

(c) In cases of recurrence of disability, where the pay rate for
compensation purposes is the pay rate at the time disability recurs, a
beneficiary is eligible for cost-of-living adjustments under 5 U.S.C.
8146a where the effective date of that pay rate began more than one year
prior to the date the cost-of-living adjustment took effect.

(d) In cases of death, entitlement to cost-of-living adjustments under
5 U.S.C. 8146a begins with the first such adjustment occurring more than
one year after the date of death. However, if the death was preceded by a
period of injury-related disability, compensation payable to the survivors
will be increased by the same percentages as the cost-of-living
adjustments paid or payable to the deceased employee for the period of
disability, as well as by subsequent cost-of-living adjustments to which
the survivors would otherwise be entitled.

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§ 10.421   May a
beneficiary receive other kinds of payments from the Federal Government
concurrently with compensation?

(a) 5 U.S.C. 8116(a) provides that a beneficiary may not receive
wage-loss compensation concurrently with a Federal retirement or survivor
annuity. The beneficiary must elect the benefit that he or she wishes to
receive, and the election, once made, is revocable.

(b) An employee may receive compensation concurrently with military
retired pay, retirement pay, retainer pay or equivalent pay for service in
the Armed Forces or other uniformed services.

(c) An employee may not receive compensation for total disability
concurrently with severance pay or separation pay. However, an employee
may concurrently receive compensation for partial disability or permanent
impairment to a schedule member, organ or function with severance pay or
separation pay.

(d) Pursuant to 5 U.S.C. 8116(d), a beneficiary may receive
compensation under the FECA for either the death or disability of an
employee concurrently with benefits under title II of the Social Security
Act on account of the age or death of such employee. However, this
provision of the FECA also requires OWCP to reduce the amount of any such
compensation by the amount of any Social Security Act benefits that are
attributable to the Federal service of the employee.

(e) To determine the employee's entitlement to compensation, OWCP may
require an employee to submit an affidavit or statement as to the receipt
of any Federally funded or Federally assisted benefits. If an employee
fails to submit such affidavit or statement within 30 days of the date of
the request, his or her right to compensation shall be suspended until
such time as the requested affidavit or statement is received. At that
time compensation will be reinstated retroactive to the date of suspension
provided the employee is entitled to such compensation.

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§ 10.422   May
compensation payments be issued in a lump sum?

(a) In exercise of the discretion afforded under 5 U.S.C. 8135(a), OWCP
has determined that lump-sum payments will not be made to persons entitled
to wage-loss benefits (that is, those payable under 5 U.S.C. 8105 and
8106). Therefore, when OWCP receives requests for lump-sum payments for
wage-loss benefits, OWCP will not exercise further discretion in the
matter. This determination is based on several factors, including:

(1) The purpose of the FECA, which is to replace lost wages;

(2) The prudence of providing wage-loss benefits on a regular,
recurring basis; and

(3) The high cost of the long-term borrowing that is needed to pay out
large lump sums.

(b) However, a lump-sum payment may be made to an employee entitled to
a schedule award under 5 U.S.C. 8107 where OWCP determines that such a
payment is in the employee's best interest. Lump-sum payments of schedule
awards generally will be considered in the employee's best interest only
where the employee does not rely upon compensation payments as a
substitute for lost wages (that is, the employee is working or is
receiving annuity payments). An employee possesses no absolute right to a
lump-sum payment of benefits payable under 5 U.S.C. 8107.

(c) Lump-sum payments to surviving spouses are addressed in 5 U.S.C.
8135(b); payments to beneficiaries under 5 U.S.C. 8137 payable as a lump
sum pursuant to 5 U.S.C. 8135 are addressed in part 25 of this title.

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§ 10.423   May
compensation payments be assigned to, or attached by, creditors?

(a) As a general rule, compensation and claims for compensation are
exempt from the claims of private creditors. Further, any attempt by a
FECA beneficiary to assign his or her claim is null and void. However,
pursuant to provisions of the Social Security Act, 42 U.S.C. 659, and
regulations issued by the Office of Personnel Management (OPM) at 5 CFR
part 581, FECA benefits, including survivor's benefits, may be garnished
to collect overdue alimony and child support payments.

(b) Garnishment for child support and alimony may be requested by
providing a copy of the State agency or court order to the district office
handling the FECA claim.

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§ 10.424   May someone
other than the beneficiary be designated to receive compensation
payments?

A beneficiary may be incapable of managing or directing the management
of his or her benefits because of a mental or physical disability, or
because of legal incompetence, or because he or she is under 18 years of
age. In this situation, absent the appointment of a guardian or other
party to manage the financial affairs of the claimant by a court or
administrative body authorized to do so, OWCP in its sole discretion may
approve a person to serve as the representative payee for funds due the
beneficiary. Where a guardian or other party has been appointed by a court
or administrative body authorized to do so to manage the financial affairs
of the claimant, OWCP will recognize that individual as the representative
payee.

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§ 10.425   May
compensation be claimed for periods of restorable leave?

The employee may claim compensation for periods of annual and sick
leave which are restorable in accordance with the rules of the employing
agency. Forms CA-7a and CA-7b are used for this purpose. Leave donated to
an employee by an employing agency leave bank is not restorable leave.

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Overpayments

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§ 10.430   How does OWCP
notify an individual of a payment made?

(a) In addition to providing narrative descriptions to recipients of
benefits paid or payable, OWCP includes on each periodic check a clear
indication of the period for which payment is being made. A form is sent
to the recipient with each supplemental check which states the date and
amount of the payment and the period for which payment is being made. For
payments sent by electronic funds transfer (EFT), a notification of the
date and amount of payment appears on the statement from the recipient's
financial institution.

(b) By these means, OWCP puts the recipient on notice that a payment
was made and the amount of the payment. If the amount received differs
from the amount indicated on the written notice or bank statement, the
recipient is responsible for notifying OWCP of the difference. Absent
affirmative evidence to the contrary, the beneficiary will be presumed to
have received the notice of payment, whether mailed or transmitted
electronically. For EFT payments, OWCP is entitled to presume receipt and
acceptance of that payment once a recipient has had an opportunity to
receive a statement from their financial institution.

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§ 10.431   What does OWCP
do when an overpayment is identified?

Before seeking to recover an overpayment or adjust benefits, OWCP will
advise the beneficiary in writing that:

(a) The overpayment exists, and the amount of overpayment;

(b) A preliminary finding shows either that the individual was or was
not at fault in the creation of the overpayment;

(c) He or she has the right to inspect and copy Government records
relating to the overpayment; and

(d) He or she has the right to present evidence which challenges the
fact or amount of the overpayment, and/or challenges the preliminary
finding that he or she was at fault in the creation of the overpayment. He
or she may also request that recovery of the overpayment be waived.

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§ 10.432   How can an
individual present evidence to OWCP in response to a preliminary notice of
an overpayment?

The individual may present this evidence to OWCP in writing or at a
pre-recoupment hearing. The evidence must be presented or the hearing
requested within 30 days of the date of the written notice of overpayment.
Failure to request the hearing within this 30-day time period shall
constitute a waiver of that right.

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§ 10.433   Under what
circumstances can OWCP waive recovery of an overpayment?

(a) OWCP may consider waiving an overpayment only if the individual to
whom it was made was not at fault in accepting or creating the
overpayment. Each recipient of compensation benefits is responsible for
taking all reasonable measures to ensure that payments he or she receives
from OWCP are proper. The recipient must show good faith and exercise a
high degree of care in regard to receipt of their benefits. Such care
includes reporting events which may affect entitlement to or the amount of
benefits, including reviewing their accounts and related statements
(including electronic statements and records from their financial
institutions involving EFT payments). A recipient who has done any of the
following will be found to be at fault with respect to creating an
overpayment:

(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or

(2) Failed to provide information which he or she knew or should have
known to be material; or

(3) Accepted a payment which the recipient knew or should have known to
be incorrect. (This provision applies only to the overpaid
individual.)

(b) Whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual's capacity to realize
that he or she is being overpaid.

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§ 10.434   If OWCP finds
that the recipient of an overpayment was not at fault, what criteria are
used to decide whether to waive recovery of it?

If OWCP finds that the recipient of an overpayment was not at fault,
repayment will still be required unless:

(a) Adjustment or recovery of the overpayment would defeat the purpose
of the FECA (see § 10.436), or

(b) Adjustment or recovery of the overpayment would be against equity
and good conscience (see § 10.437).

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§ 10.435   Is an
individual responsible for an overpayment that resulted from an error made
by OWCP or another Government agency?

(a) The fact that OWCP may have erred in making the overpayment, or
that the overpayment may have resulted from an error by another Government
agency, does not by itself relieve the individual who received the
overpayment from liability for repayment if the individual also was at
fault in accepting the overpayment.

(b) However, OWCP may find that the individual was not at fault if
failure to report an event affecting compensation benefits, or acceptance
of an incorrect payment, occurred because:

(1) The individual relied on misinformation given in writing by OWCP
(or by another Government agency which he or she had reason to believe was
connected with the administration of benefits) as to the interpretation of
a pertinent provision of the FECA or its regulations; or

(2) OWCP erred in calculating cost-of-living increases, schedule award
length and/or percentage of impairment, or loss of wage-earning
capacity.

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§ 10.436   Under what
circumstances would recovery of an overpayment defeat the purpose of the
FECA?

Recovery of an overpayment will defeat the purpose of the FECA if such
recovery would cause hardship to a currently or formerly entitled
beneficiary because:

(a) The beneficiary from whom OWCP seeks recovery needs substantially
all of his or her current income (including compensation benefits) to meet
current ordinary and necessary living expenses; and

(b) The beneficiary's assets do not exceed a specified amount as
determined by OWCP from data furnished by the Bureau of Labor Statistics.
A higher amount is specified for a beneficiary with one or more
dependents.

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§ 10.437   Under what
circumstances would recovery of an overpayment be against equity and good
conscience?

(a) Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would
experience severe financial hardship in attempting to repay the debt.

(b) Recovery of an overpayment is also considered to be against equity
and good conscience when any individual, in reliance on such payments or
on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse. In making such a decision, OWCP
does not consider the individual's current ability to repay the
overpayment.

(1) To establish that a valuable right has been relinquished, it must
be shown that the right was in fact valuable, that it cannot be regained,
and that the action was based chiefly or solely in reliance on the
payments or on the notice of payment. Donations to charitable causes or
gratuitous transfers of funds to other individuals are not considered
relinquishments of valuable rights.

(2) To establish that an individual's position has changed for the
worse, it must be shown that the decision made would not otherwise have
been made but for the receipt of benefits, and that this decision resulted
in a loss.

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§ 10.438   Can OWCP
require the individual who received the overpayment to submit additional
financial information?

(a) The individual who received the overpayment is responsible for
providing information about income, expenses and assets as specified by
OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of the FECA, or be against equity
and good conscience. This information will also be used to determine the
repayment schedule, if necessary.

(b) Failure to submit the requested information within 30 days of the
request shall result in denial of waiver, and no further request for
waiver shall be considered until the requested information is
furnished.

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§ 10.439   What is
addressed at a pre-recoupment hearing?

At a pre-recoupment hearing, the OWCP representative will consider all
issues in the claim on which a formal decision has been issued. Such a
hearing will thus fulfill OWCP's obligation to provide pre-recoupment
rights and a hearing under 5 U.S.C. 8124(b). Pre-recoupment hearings shall
be conducted in exactly the same manner as provided in § 10.615
through § 10.622.

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§ 10.440   How does OWCP
communicate its final decision concerning recovery of an overpayment, and
what appeal right accompanies it?

(a) OWCP will send a copy of the final decision to the individual from
whom recovery is sought; his or her representative, if any; and the
employing agency.

(b) The only review of a final decision concerning an overpayment is to
the Employees' Compensation Appeals Board. The provisions of 5 U.S.C.
8124(b) (concerning hearings) and 5 U.S.C. 8128(a) (concerning
reconsiderations) do not apply to such a decision. The pendency of an
appeal with ECAB has no effect on the finality of the order being
appealed; in the event ECAB reverses the final overpayment decision, any
monies collected will be restored to the beneficiary.

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§ 10.441   How are
overpayments collected?

(a) When an overpayment has been made to an individual who is entitled
to further payments, the individual shall refund to OWCP the amount of the
overpayment as soon as the error is discovered or his or her attention is
called to same. If no refund is made, OWCP shall decrease later payments
of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the
individual, and any other relevant factors, so as to minimize any
hardship. Should the individual die before collection has been completed,
collection shall be made by decreasing later payments, if any, payable
under the FECA with respect to the individual's death. If no further
benefits are payable with respect to the individual's death, OWCP may also
file a claim with the estate of the individual or seek repayment of the
overpayment through other means including referral of the debt to the
Treasury Department.

(b) When an overpayment has been made to an individual who is not
entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her
attention is called to same. The overpayment is subject to the provisions
of the Federal Claims Collection Act of 1966 (as amended) and may be
reported to the Internal Revenue Service as income. If the individual
fails to make such refund, OWCP may recover the same through any available
means, including offset of salary, annuity benefits, or other Federal
payments, including tax refunds as authorized by the Tax Refund Offset
Program, or referral of the debt to a collection agency or to the
Department of Justice.

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Subpart F—Continuing Benefits

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Rules and Evidence

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§ 10.500   What are the
basic rules governing continuing receipt of compensation benefits and
return to work?

(a) Benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is
available only for any periods during which an employee's work-related
medical condition prevents him or her from earning the wages earned before
the work-related injury. For example, an employee is not entitled to
compensation for any wage-loss claimed on a CA-7 to the extent that
evidence contemporaneous with the period claimed on a CA-7 establishes
that an employee had medical work restrictions in place; that light duty
within those work restrictions was available; and that the employee was
previously notified in writing that such duty was available. Similarly, an
employee receiving continuing periodic payments for disability was not
prevented from earning the wages earned before the work-related injury if
the evidence establishes that the employing agency had offered, in
accordance with OWCP procedures, a temporary light duty assignment within
the employee's work restrictions. (The penalty provision of 5 U.S.C.
8106(c)(2) will not be imposed on such assignments under this
paragraph.)

(b) Each disabled employee is obligated to perform such work as he or
she can. OWCP's goal is to return each disabled employee to work as soon
as he or she is medically able. In determining what work qualifies under 5
U.S.C. 8115 for determining the wage-earning capacity for a particular
disabled employee, OWCP considers all relevant factors, including the
employee's current physical limitations, whether the work is available
within the employee's demonstrated commuting area and the employee's
qualifications to perform such work.

(c) A disabled employee who refuses to seek or accept suitable
employment within the meaning of 5 U.S.C. 8106(c)(2) is not entitled to
compensation.

(d) Payment of medical benefits is available for all treatment
necessary due to a work-related medical condition.

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§ 10.501   What medical
evidence is necessary to support continuing receipt of compensation
benefits?

(a) The employee is responsible for providing sufficient medical
evidence to justify payment of any compensation sought.

(1) To support payment of continuing compensation where an employee has
been found entitled to periodic benefits, narrative medical evidence must
be submitted whenever OWCP requests it but ordinarily not less than once a
year and with any filing of a form CA-1032. It must contain a physician's
rationalized opinion as to whether the specific period of alleged
disability is causally related to the employee's accepted injury or
illness.

(2) For those employees with more serious conditions not likely to
improve and for employees over the age of 65, OWCP may require less
frequent documentation, but ordinarily not less than once every three
years.

(3) The physician's opinion must be based on the facts of the case and
the complete medical background of the employee, must be one of reasonable
medical certainty and must include objective findings in support of its
conclusions. Subjective complaints of pain are not sufficient, in and of
themselves, to support payment of continuing compensation. Likewise,
medical limitations based solely on the fear of a possible future injury
are also not sufficient to support payment of continuing compensation. See
§ 10.330 for a fuller discussion of medical evidence.

(b) OWCP may require any kind of non-invasive testing to determine the
employee's functional capacity. Failure to undergo such testing will
result in a suspension of benefits. In addition, OWCP may direct the
employee to undergo a second opinion or referee examination in any case it
deems appropriate (see §§ 10.320 and 10.321).

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§ 10.502   How does OWCP
evaluate evidence in support of continuing receipt of compensation
benefits?

In considering the medical and factual evidence, OWCP will weigh the
probative value of the attending physician's report, any second opinion
physician's report, any other medical reports, or any other evidence in
the file. If OWCP determines that the medical evidence supporting one
conclusion is more consistent, logical, and well-reasoned than evidence
supporting a contrary conclusion, OWCP will use the conclusion that is
supported by the weight of the medical evidence as the basis for awarding
or denying further benefits. If medical reports that are equally
well-reasoned support inconsistent determinations of an issue under
consideration, OWCP will direct the employee to undergo a third, impartial
referee examination to resolve the issue, which will be given special
weight in determining the issue.

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§ 10.503   Under what
circumstances may OWCP reduce or terminate compensation benefits?

Once OWCP has advised the employee that it has accepted a claim and has
either approved continuation of pay or paid medical benefits or
compensation, benefits will not be terminated or reduced unless the weight
of the evidence establishes that:

(a) The disability for which compensation was paid has ceased;

(b) The disabling condition is no longer causally related to the
employment;

(c) The employee is only partially disabled;

(d) The employee has returned to work;

(e) The beneficiary was convicted of fraud in connection with a claim
under the FECA, or the beneficiary was incarcerated based on any felony
conviction; or

(f) OWCP's initial decision was in error.

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Return to Work—Employer's
Responsibilities

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§ 10.505   What actions
must the employer take?

Upon authorizing medical care, the employer should advise the employee
in writing as soon as possible of his or her obligation to return to work
under § 10.210 and as defined in this subpart. The term “return to
work” as used in this subpart is not limited to returning to work at the
employee's normal worksite or usual position, but may include returning to
work at other locations and in other positions. In general, the employer
should make all reasonable efforts to place the employee in his or her
former or an equivalent position, in accordance with 5 U.S.C. 8151(b)(2),
if the employee has fully recovered after one year. The Office of
Personnel Management (not OWCP) administers this provision.

(a) Where the employer has specific alternative positions available for
partially disabled employees, the employer should advise the employee in
writing of the specific duties and physical requirements of those
positions.

(b) Where the employer has no specific alternative positions available
for an employee who can perform restricted or limited duties, the employer
should advise the employee of any accommodations the agency can make to
accommodate the employee's limitations due to the injury.

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§ 10.506   May the
employer monitor the employee's medical care?

The employer may monitor the employee's medical progress and duty
status by obtaining periodic medical reports. Form CA-17 is usually
adequate for this purpose. To aid in returning an injured employee to
suitable employment, the employer may also contact the employee's
physician in writing concerning the work limitations imposed by the
effects of the injury and possible job assignments. (However, the employer
shall not contact the physician by telephone or through personal visit.)
When such contact is made, the employer shall send a copy of any such
correspondence to OWCP and the employee, as well as a copy of the
physician's response when received. The employer may also contact the
employee at reasonable intervals to request periodic medical reports
addressing his or her ability to return to work.

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§ 10.507   How should the
employer make an offer of suitable work?

Where the attending physician or OWCP notifies the employer in writing
that the employee is partially disabled (that is, the employee can perform
some work but not return to the position held at date of injury), the
employer should act as follows:

(a) If the employee can perform in a specific alternative position
available in the agency, and the employer has advised the employee in
writing of the specific duties and physical requirements, the employer
shall notify the employee in writing immediately of the date of
availability.

(b) If the employee can perform restricted or limited duties, the
employer should determine whether such duties are available or whether an
existing job can be modified. If so, the employer shall advise the
employee in writing of the duties, their physical requirements and
availability.

(c) The employer must make any job offer in writing. However, the
employer may make a job offer verbally as long as it provides the job
offer to the employee in writing within two business days of the verbal
job offer.

(d) The offer must include a description of the duties of the position,
the physical requirements of those duties, and the date by which the
employee is either to return to work or notify the employer of his or her
decision to accept or refuse the job offer. The employer must send a
complete copy of any job offer to OWCP when it is sent to the
employee.

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§ 10.508   May relocation
expenses be paid for an employee who would need to move to accept an offer
of reemployment?

If possible, the employer should offer suitable reemployment in the
location where the employee currently resides. If this is not practical,
the employer may offer suitable reemployment at the employee's former duty
station or other location. Where the distance between the location of the
offered job and the location where the employee currently resides is at
least 50 miles, OWCP may pay such relocation expenses as are considered
reasonable and necessary if the employee has been terminated from the
agency's employment rolls and would incur relocation expenses by accepting
the offered reemployment. OWCP may also pay such relocation expenses when
the new employer is other than a Federal employer. OWCP will notify the
employee that relocation expenses are payable if it makes a finding that
the job is suitable. To determine whether a relocation expense is
reasonable and necessary, OWCP shall use as a guide the Federal travel
regulations for permanent changes of duty station.

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§ 10.509   If an
employee's light duty job is eliminated due to downsizing, what is the
effect on compensation?

In general, an employee will not be considered to have experienced a
compensable recurrence of disability as defined in § 10.5(x) merely
because his or her employer has eliminated the employee's light-duty
position in a reduction-in-force or some other form of downsizing. When
this occurs, OWCP will determine the employee's wage-earning capacity
based on his or her actual earnings in such light-duty position if this
determination is appropriate on the basis that such earnings fairly and
reasonably represent the employee's wage-earning capacity and such a
determination has not already been made and the employing agency has
stated, in writing, that no other employment is available.

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§ 10.510   When may a
light duty job form the basis of a loss of wage-earning capacity
determination?

A light-duty position that fairly and reasonably represents an
employee's ability to earn wages may form the basis of a loss of
wage-earning capacity determination if that light duty position is a
classified position to which the injured employee has been formally
reassigned. The position must conform to the established physical
limitations of the injured employee; the employer must have a written
position description outlining the duties and physical requirements; and
the position must correlate to the type of appointment held by the injured
employee at the time of injury. If these circumstances are present, a
determination may be made that the position constitutes “regular” Federal
employment. In the absence of a “light-duty position” as described in this
paragraph, OWCP will assume that the employee was instead engaged in
non-competitive, makeshift or odd lot employment which does not represent
the employee's wage-earning capacity, i.e., work of the type provided to
injured employees who cannot otherwise be employed by the Federal
Government or in any well-known branch of the general labor market.

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§ 10.511   How may a loss
of wage-earning capacity determination be modified?

If OWCP issues a formal loss of wage-earning capacity determination,
including a finding of no loss of wage-earning capacity, that
determination and rate of compensation, if applicable, remains in place
until that determination is modified by OWCP. Modification of such a
determination is only warranted where the party seeking the modification
establishes either that there is a material change in the nature and
extent of the injury-related condition, the employee has been retrained or
otherwise vocationally rehabilitated, or the original determination was
erroneous. However, OWCP is not precluded from adjudicating a limited
period of disability following the issuance of a loss of wage-earning
capacity decision, such as where an employee has a demonstrated need for
surgery.

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Return to Work—Employee's
Responsibilities

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§ 10.515   What actions
must the employee take with respect to returning to work?

(a) If an employee can resume regular Federal employment, he or she
must do so. No further compensation for wage loss is payable once the
employee has recovered from the work-related injury to the extent that he
or she can perform the duties of the position held at the time of injury,
or earn equivalent wages.

(b) If an employee cannot return to the job held at the time of injury
due to partial disability from the effects of the work-related injury, but
has recovered enough to perform some type of work, he or she must seek
work. In the alternative, the employee must accept suitable work offered
to him or her. This work may be with the original employer or through job
placement efforts made by or on behalf of OWCP.

(c) If the employer has advised an employee in writing that specific
alternative positions exist within the agency, the employee shall provide
the description and physical requirements of such alternate positions to
the attending physician and ask whether and when he or she will be able to
perform such duties.

(d) If the employer has advised an employee that it is willing to
accommodate his or her work limitations, the employee shall so advise the
attending physician and ask him or her to specify the limitations imposed
by the injury. The employee is responsible for advising the employer
immediately of these limitations.

(e) From time to time, OWCP may require the employee to report his or
her efforts to obtain suitable employment, whether with the Federal
Government, State and local Governments, or in the private sector.

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§ 10.516   How will an
employee know if OWCP considers a job to be suitable?

OWCP shall advise the employee that it has found the offered work to be
suitable and afford the employee 30 days to accept the job or present any
reasons to counter OWCP's finding of suitability. If the employee presents
such reasons, and OWCP determines that the reasons are unacceptable, it
will notify the employee of that determination and that he or she has 15
days in which to accept the offered work without penalty. At that point in
time, OWCP's notification need not state the reasons for finding that the
employee's reasons are not acceptable.

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§ 10.517   What are the
penalties for refusing to accept a suitable job offer?

(a) 5 U.S.C. 8106(c) provides that a partially disabled employee who
refuses to seek suitable work, or refuses to or neglects to work after
suitable work is offered to or arranged for him or her, is not entitled to
compensation. An employee who refuses or neglects to work after suitable
work has been offered or secured for him or her has the burden to show
that this refusal or failure to work was reasonable or justified.

(b) After providing the two notices described in § 10.516, OWCP
will terminate the employee's entitlement to further compensation under 5
U.S.C. 8105, 8106, and 8107 on all claims where the injury occurred prior
to the termination decision, as provided by 5 U.S.C. 8106(c)(2). However,
the employee remains entitled to medical benefits as provided by 5 U.S.C.
8103.

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§ 10.518   Does OWCP
provide services to help employees return to work?

OWCP may, in its discretion, provide vocational rehabilitation services
as authorized by 5 U.S.C. 8104. Vocational rehabilitation services may
include vocational evaluation, testing, training, and placement services
with either the original employer or a new employer, when the injured
employee cannot return to the job held at the time of injury. These
services also include functional capacity evaluations, which help to
tailor individual rehabilitation programs to employees' physical
reconditioning and behavioral modification needs, and help employees to
meet the demands of current or potential jobs.

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§ 10.519   What action
will OWCP take if an employee refuses to undergo vocational
rehabilitation?

Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled employee
to undergo vocational rehabilitation. To ensure that vocational
rehabilitation services are available to all who might be entitled to
benefit from them, an injured employee who has a loss of wage-earning
capacity shall be presumed to be “permanently disabled,” for purposes of
this section only, unless and until the employee proves that the
disability is not permanent. If an employee without good cause fails or
refuses to apply for, undergo, participate in, or continue to participate
in a vocational rehabilitation effort when so directed, OWCP will act as
follows:

(a) Where a suitable job has been identified, OWCP will reduce the
employee's future monetary compensation based on the amount which would
likely have been his or her wage-earning capacity had he or she undergone
vocational rehabilitation. OWCP will determine this amount in accordance
with the job identified through the vocational rehabilitation planning
process, which includes meetings with the OWCP nurse and the employer. The
reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of OWCP.

(b) Where a suitable job has not been identified, because the failure
or refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, interviews, testing, counseling,
functional capacity evaluations, and work evaluations), OWCP cannot
determine what would have been the employee's wage-earning capacity.

(c) Under the circumstances identified in paragraph (b) of this
section, in the absence of evidence to the contrary, OWCP will assume that
the vocational rehabilitation effort would have resulted in a return to
work with no loss of wage-earning capacity, and OWCP will reduce the
employee's monetary compensation accordingly (that is, to zero). This
reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of OWCP.

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§ 10.520   How does OWCP
determine compensation after an employee completes a vocational
rehabilitation program?

After completion of a vocational rehabilitation program, OWCP may
adjust compensation to reflect the injured worker's wage-earning capacity.
Actual earnings will be used if they fairly and reasonably reflect the
earning capacity. The position determined to be the goal of a training
plan is assumed to represent the employee's earning capacity if it is
suitable and performed in sufficient numbers so as to be reasonably
available, whether or not the employee is placed in such a position.

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§ 10.521   If an employee
elects to receive retirement benefits instead of FECA benefits, what
effect may such an election have on that employee's entitlement to FECA
compensation?

Where an employee is undergoing vocational rehabilitation, or where
OWCP is attempting to otherwise place that employee in a suitable job, and
that employee elects to receive retirement benefits from the Office of
Personnel Management instead of benefits under the FECA, the OWCP may
proceed with a loss of wage-earning capacity determination which may
reduce FECA entitlement as long as the determination is based on the
evidence of record at the time of such election.

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Reports of Earnings From Employment and
Self-Employment

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§ 10.525   What
information must the employee report?

(a) An employee who is receiving compensation for partial or total
disability must advise OWCP immediately of any return to work, either
part-time or full-time. An employee must report all outside employment,
including any concurrent dissimilar employment held at the time of injury,
even if the injury did not result in any lost time in that position. In
addition, an employee who is receiving compensation for partial or total
disability will periodically be required to submit a report of earnings
from employment or self-employment, either part-time or full-time. (See
§ 10.5(g) for a definition of “earnings.”)

(b) The employee must report even those earnings which do not seem
likely to affect his or her level of benefits. Many kinds of income,
though not all, will result in reduction of compensation benefits. While
earning income will not necessarily result in a reduction of compensation,
failure to report income may result in forfeiture of all benefits paid
during the reporting period.

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§ 10.526   Must the
employee report volunteer activities?

An employee who is receiving compensation for partial or total
disability is periodically required to report volunteer activity or any
other kind of activity which shows that the employee is no longer totally
disabled for work. The fact that the employee did not receive any salary
for this work is not a basis for failing to report this activity; instead
the employee must report the cost if any to have someone else do the work
or activity.

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§ 10.527   Does OWCP
verify reports of earnings?

To make proper determinations of an employee's entitlement to benefits,
OWCP may verify the earnings reported by the employee through a variety of
means, including but not limited to computer matches with the Office of
Personnel Management and inquiries to the Social Security Administration.
Also, OWCP may perform computer matches with records of State agencies,
including but not limited to workers' compensation administrations, to
determine whether private employers are paying workers' compensation
insurance premiums for recipients of benefits under the FECA.

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§ 10.528   What action
will OWCP take if the employee fails to file a report of activity
indicating an ability to work?

OWCP periodically requires each employee who is receiving compensation
benefits to complete an affidavit as to any work, or activity indicating
an ability to work, which the employee has performed for the prior 15
months. If an employee who is required to file such a report fails to do
so within 30 days of the date of the request, his or her right to
compensation for wage loss under 5 U.S.C. 8105 or 8106 is suspended until
OWCP receives the requested report. At that time, OWCP will reinstate
compensation retroactive to the date of suspension if the employee remains
entitled to compensation.

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§ 10.529   What action
will OWCP take if the employee files an incomplete report?

(a) If an employee knowingly omits or understates any earnings or work
activity in making a report, he or she shall forfeit the right to
compensation with respect to any period for which the report was required.
A false or evasive statement, omission, concealment, or misrepresentation
with respect to employment activity or earnings in a report may also
subject an employee to criminal prosecution.

(b) Where the right to compensation is forfeited, OWCP shall recover
any compensation already paid for the period of forfeiture pursuant to 5
U.S.C. 8129 and other relevant statutes.

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Reports of Dependents

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§ 10.535   How are
dependents defined, and what information must the employee report?

(a) Dependents in disability cases are defined in § 10.405. While
the employee has one or more dependents, the employee's basic compensation
for wage loss or for permanent impairment shall be augmented as provided
in 5 U.S.C. 8110. (The rules for death claims are found in
§ 10.414.)

(b) An employee who is receiving augmented compensation on account of
dependents must advise OWCP immediately of any change in the number or
status of dependents. The employee should also promptly refund to OWCP any
amounts received on account of augmented compensation after the right to
receive augmented compensation has ceased. Any difference between actual
entitlement and the amount already paid beyond the date entitlement ended
is an overpayment of compensation and may be recovered pursuant to 5
U.S.C. 8129 and other relevant statutes.

(c) An employee who is receiving augmented compensation shall be
periodically required to submit a statement as to any dependents, or to
submit supporting documents such as birth or marriage certificates or
court orders, to determine if he or she is still entitled to augmented
compensation.

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§ 10.536   What is the
penalty for failing to submit a report of dependents?

If an employee fails to submit a requested statement or supporting
document within 30 days of the date of the request, OWCP will suspend his
or her right to augmented compensation until OWCP receives the requested
statement or supporting document. At that time, OWCP will reinstate
augmented compensation retroactive to the date of suspension, provided
that the employee is entitled to receive augmented compensation.

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§ 10.537   What reports
are needed when compensation payments continue for children over age
18?

(a) Compensation payable on behalf of a child that would otherwise end
when the child reaches 18 years of age will continue if and for so long as
he or she is not married and is either a student as defined in 5 U.S.C.
8101(17), or physically or mentally incapable of self-support.

(b) At least once each year, OWCP will ask an employee who receives
compensation based on the student status of a child to provide proof of
continuing entitlement to such compensation, including certification of
school enrollment. The employee is required to report any changes to
student status in the interim as soon as they occur.

(c) Likewise, at least once each year, OWCP will ask an employee who
receives compensation based on a child's physical or mental inability to
support himself or herself, and who is not covered by § 10.417(d) of
this part, to submit a medical report verifying that the child's medical
condition persists and that it continues to preclude self- support. The
employee is required to report any changes to that status in the
interim.

(d) If an employee fails to submit proof within 30 days of the date of
the request, OWCP will suspend the employee's right to compensation until
the requested information is received. At that time OWCP will reinstate
compensation retroactive to the date of suspension, provided the employee
is entitled to such compensation.

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Reduction and Termination of
Compensation

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§ 10.540   When and how
is compensation reduced or terminated?

(a) Except as provided in paragraphs (c), (d), and (e) of this section,
where the evidence establishes that compensation should be either reduced
or terminated, OWCP will provide the beneficiary with written notice of
the proposed action and give him or her 30 days to submit relevant
evidence or argument to support entitlement to continued payment of
compensation.

(b) Notice provided under this section will include a description of
the reasons for the proposed action and a copy of the specific evidence
upon which OWCP is basing its determination. Payment of compensation will
continue until any evidence or argument submitted has been reviewed and an
appropriate decision has been issued, or until 30 days have elapsed if no
additional evidence or argument is submitted.

(c) OWCP will not provide such written notice when the beneficiary has
no reasonable basis to expect that payment of compensation will continue.
For example, when a claim has been made for a specific period of time and
that specific period expires, no written notice will be given.

(d) Written notice will also not be given when a beneficiary dies, when
OWCP either reduces or terminates compensation upon an employee's return
to work, when OWCP terminates only medical benefits after a physician
indicates that further medical treatment is not necessary or has ended, or
when OWCP denies payment for a particular medical expense.

(e) OWCP will also not provide such written notice when compensation is
terminated, suspended or forfeited due to one of the following: A
beneficiary's conviction for fraud in connection with a claim under the
FECA; a beneficiary's incarceration based on any felony conviction; an
employee's failure to report earnings from employment or self-employment;
an employee's failure or refusal to either continue performing suitable
work or to accept an offer of suitable work; or an employee's refusal to
undergo or obstruction of a directed medical examination or treatment for
substance abuse.

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§ 10.541   What action
will OWCP take after issuing written notice of its intention to reduce or
terminate compensation?

(a) If the beneficiary submits evidence or argument prior to the
issuance of the decision, OWCP will evaluate it in light of the proposed
action and undertake such further development as it may deem appropriate,
if any. Evidence or argument which is repetitious, cumulative, or
irrelevant will not require any further development. If the beneficiary
does not respond within 30 days of the written notice, OWCP will issue a
decision consistent with its prior notice. OWCP will not grant any request
for an extension of this 30-day period.

(b) Evidence or argument which refutes the evidence upon which the
proposed action was based will result in the continued payment of
compensation. If the beneficiary submits evidence or argument which fails
to refute the evidence upon which the proposed action was based but which
requires further development, OWCP will not provide the beneficiary with
another notice of its proposed action upon completion of such development.
Once any further development of the evidence is completed, OWCP will
either continue payment or issue a decision consistent with its prior
notice.

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Subpart G—Appeals Process

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§ 10.600   How can final
decisions of OWCP be reviewed?

There are three methods for reviewing a formal decision of the OWCP
(§§ 10.125 through 10.127 discuss how decisions are made). These
methods are: reconsideration by the district office; a hearing before an
OWCP hearing representative; and appeal to the Employees' Compensation
Appeals Board (ECAB). For each method there are time limitations and other
restrictions which may apply, and not all options are available for all
decisions, so the employee should consult the requirements set forth
below. Further rules governing appeals to the ECAB are found at part 501
of this title.

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Reconsiderations and Reviews by the
Director

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§ 10.605   What is
reconsideration?

The FECA provides that the Director may review an award for or against
compensation upon application by an employee (or his or her
representative) who receives an adverse decision. The employee shall
exercise this right through a request to the district office. The request,
along with the supporting statements and evidence, is called the
“application for reconsideration.”

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§ 10.606   How does a
claimant request reconsideration?

(a) An employee (or representative) seeking reconsideration should send
the application for reconsideration to the address as instructed by OWCP
in the final decision.

(b) The application for reconsideration, including all supporting
documents, must:

(1) Be submitted in writing;

(2) Be signed and dated by the claimant or the authorized
representative; and

(3) Set forth arguments and contain evidence that either:

(i) Shows that OWCP erroneously applied or interpreted a specific point
of law;

(ii) Advances a relevant legal argument not previously considered by
OWCP; or

(iii) Constitutes relevant and pertinent new evidence not previously
considered by OWCP.

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§ 10.607   What is the
time limit for requesting reconsideration?

(a) An application for reconsideration must be received by OWCP within
one year of the date of the OWCP decision for which review is sought.

(b) OWCP will consider an untimely application for reconsideration only
if the application demonstrates clear evidence of error on the part of
OWCP in its most recent merit decision. The application must establish, on
its face, that such decision was erroneous.

(c) The year in which a claimant has to timely request reconsideration
shall not include any period subsequent to an OWCP decision for which the
claimant can establish through probative medical evidence that he or she
is unable to communicate in any way and that his or her testimony is
necessary in order to obtain modification of the decision.

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§ 10.608   How does OWCP
decide whether to grant or deny the request for reconsideration?

(a) A timely request for reconsideration may be granted if OWCP
determines that the employee has presented evidence and/or argument that
meets at least one of the standards described in § 10.606(b)(3). If
reconsideration is granted, the case is reopened and the case is reviewed
on its merits (see § 10.609).

(b) Where the request is timely but fails to meet at least one of the
standards described in § 10.606(b)(3), or where the request is
untimely and fails to present any clear evidence of error, OWCP will deny
the application for reconsideration without reopening the case for a
review on the merits. A decision denying an application for
reconsideration cannot be the subject of another application for
reconsideration. The only review for this type of non-merit decision is an
appeal to the ECAB (see § 10.625), and OWCP will not entertain a
request for reconsideration or a hearing on this decision denying
reconsideration.

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§ 10.609   How does OWCP
decide whether new evidence requires modification of the prior
decision?

When application for reconsideration is granted, OWCP will review the
decision for which reconsideration is sought on the merits and determine
whether the new evidence or argument requires modification of the prior
decision.

(a) After OWCP decides to grant reconsideration, but before undertaking
the review, OWCP will send a copy of the reconsideration application to
the employer, which will have 20 days from the date sent to comment or
submit relevant documents. OWCP will provide any such comments to the
employee, who will have 20 days from the date the comments are sent to him
or her within which to comment. If no comments are received from the
employer, OWCP will proceed with the merit review of the case. Where a
reconsideration request pertains only to a medical issue (such as
disability or a schedule award) not requiring comment from the employing
agency, the employing agency will be notified that a request for
reconsideration has been received, but OWCP is not required to wait 20
days for comment before reaching a determination, except when that
claimant is deployed in an area of armed conflict.

(b) A claims examiner who did not participate in making the contested
decision will conduct the merit review of the claim. When all evidence has
been reviewed, OWCP will issue a new merit decision, based on all the
evidence in the record. A copy of the decision will be provided to the
agency.

(c) An employee dissatisfied with this new merit decision may again
request reconsideration under this subpart or appeal to the ECAB. An
employee may not request a hearing on this decision.

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§ 10.610   What is a
review by the Director?

The FECA specifies that an award for or against payment of compensation
may be reviewed at any time on the Director's own motion. Such review may
be made without regard to whether there is new evidence or information. If
the Director determines that a review of the award is warranted
(including, but not limited to circumstances indicating a mistake of fact
or law or changed conditions), the Director (at any time and on the basis
of existing evidence) may modify, rescind, decrease or increase
compensation previously awarded, or award compensation previously denied.
A review on the Director's own motion is not subject to a request or
petition and none shall be entertained.

(a) The decision whether or not to review an award under this section
is solely within the discretion of the Director. The Director's exercise
of this discretion is not subject to review by the ECAB, nor can it be the
subject of a reconsideration or hearing request.

(b) Where the Director reviews an award on his or her own motion, any
resulting decision is subject as appropriate to reconsideration, a hearing
and/or appeal to the ECAB. Jurisdiction on review or on appeal to ECAB is
limited to a review of the merits of the resulting decision. The
Director's determination to review the award is not reviewable.

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Hearings

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§ 10.615   What is a
hearing?

A hearing is a review of an adverse decision by a hearing
representative. Initially, the claimant can choose between two formats: An
oral hearing or a review of the written record. At the discretion of the
hearing representative, an oral hearing may be conducted by telephone,
teleconference, videoconference or other electronic means. In addition to
the evidence of record, the employee may submit new evidence to the
hearing representative.

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§ 10.616   How does a
claimant obtain a hearing?

(a) A claimant, injured on or after July 4, 1966, who has received a
final adverse decision by the district office may obtain a hearing by
writing to the address specified in the decision. The hearing request must
be sent within 30 days (as determined by postmark or other carrier's date
marking) of the date of the decision for which a hearing is sought. The
claimant must not have previously submitted a reconsideration request
(whether or not it was granted) on the same decision.

(b) OWCP will schedule an oral hearing and determine whether the oral
hearing will be conducted in person, including whether the in person
hearing will be by teleconference, videoconference or other electronic
means. The claimant can request a change in the format from a hearing to a
review of the written record by making a written request to the Branch of
Hearings and Review. OWCP will grant a request received by the Branch of
Hearings and Review within 30 days of: the date OWCP acknowledges the
initial hearing request, or the date OWCP issues a notice setting a date
for an oral hearing, in cases where the initial request was for, or was
treated as a request for, an oral hearing. A request received after those
dates will be subject to OWCP's discretion. The decision to grant or deny
a change of format from a hearing to a review of the written record is not
reviewable.

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§ 10.617   How is an oral
hearing conducted?

(a) The hearing representative retains complete discretion to set the
time, place and method of the hearing, including the amount of time
allotted for the hearing, considering the issues to be resolved. Any
requests for reasonable accommodation by individuals with disabilities
should be made through the procedure described in the initial
acknowledgement letter.

(b) Unless otherwise directed in writing by the claimant, the hearing
representative will mail a notice of the time, place and method of the
oral hearing to the claimant and any representative at least 30 days
before the scheduled date. The employer will also be mailed a notice at
least 30 days before the scheduled date.

(c) The hearing is an informal process, and the hearing representative
is not bound by common law or statutory rules of evidence, by technical or
formal rules of procedure or by section 5 of the Administrative Procedure
Act, but the hearing representative may conduct the hearing in such manner
as to best ascertain the rights of the claimant. During the hearing
process, the claimant may state his or her arguments and present new
written evidence in support of the claim. Hearings are limited to one
hour; this limitation may be extended in the discretion of the hearing
representative.

(d) Testimony at oral hearings, including those conducted by
teleconference, videoconference or other electronic means, is recorded,
then transcribed and placed in the record. Oral testimony shall be made
under oath. The transcript of the hearing is the official record of the
hearing.

(e) OWCP will furnish a transcript of the oral hearing to the claimant
and the employer, who have 20 days from the date it is sent to comment.
The employer shall send any comments to OWCP and the claimant, who will
have 20 more days from the date of the agency's certificate of service to
comment.

(f) The hearing remains open for the submittal of additional evidence
until 30 days after the hearing is held, unless the hearing
representative, in his or her sole discretion, grants an extension. Only
one such extension may be granted. A copy of the decision will be mailed
to the claimant's last known address, to any representative, and to the
employer.

(g) The hearing representative determines the conduct of the oral
hearing and may terminate the hearing at any time he or she determines
that all relevant evidence has been obtained, or because of misbehavior on
the part of the claimant and/or representative.

(h) Pursuant to 5 U.S.C. 8126, if an individual disobeys or resists a
lawful order or process in proceedings under this part, or misbehaves
during a hearing or in a manner so as to obstruct the hearing, OWCP may
certify the facts to the appropriate U.S. District Court, which may, if
the evidence warrants, punish the individual in the same manner and to the
same extent as for a contempt committed before the court, or commit the
individual on the same conditions as if the forbidden act had occurred
with reference to the process of or in the presence of the court.

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§ 10.618   How is a
review of the written record conducted?

(a) The hearing representative will review the official record and any
additional evidence submitted by the claimant and by the agency. The
hearing representative may also conduct whatever investigation is deemed
necessary. New evidence and arguments are to be submitted at any time up
to the time specified by OWCP, but they should be submitted as soon as
possible to avoid delaying the hearing process.

(b) The claimant should submit, with his or her application for review,
all evidence or argument that he or she wants to present to the hearing
representative. If the claimant chooses to change the request from an oral
hearing to a review of the written record, the claimant should submit all
evidence or argument at that time. A copy of all pertinent material will
be sent to the employer, which will have 20 days from the date it is sent
to comment. (Medical evidence is not considered “pertinent” for review and
comment by the agency, and it will therefore not be furnished to the
agency. OWCP has sole responsibility for evaluating medical evidence.) The
employer shall send any comments to OWCP and the claimant, who will have
20 more days from the date of the agency's certificate of service to
comment.

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§ 10.619   May subpoenas
be issued for witnesses and documents?

A claimant may request a subpoena, but the decision to grant or deny
such a request is within the discretion of the hearing representative. The
hearing representative may issue subpoenas for the attendance and
testimony of witnesses, and for the production of books, records,
correspondence, papers or other relevant documents. Subpoenas are issued
for documents only if they are relevant and cannot be obtained by other
means, and for witnesses only where oral testimony is the best way to
ascertain the facts.

(a) A claimant may request a subpoena only as part of the hearings
process, and no subpoena will be issued under any other part of the claims
process. To request a subpoena, the requestor must:

(1) Submit the request in writing and send it to the hearing
representative as early as possible but no later than 60 days (as
evidenced by postmark, electronic marker or other objective date mark)
after the date of the original hearing request.

(2) Explain in the original request for a subpoena why the testimony or
evidence is directly relevant to the issues at hand, and a subpoena is the
best method or opportunity to obtain such evidence because there are no
other means by which the documents or testimony could have been
obtained.

(b) No subpoena will be issued for attendance of employees of OWCP
acting in their official capacities as decision-makers or policy
administrators. For hearings taking the form of a review of the written
record, no subpoena for the appearance of witnesses will be
considered.

(c) The hearing representative issues the subpoena under his or her own
name. It may be served in person or by certified mail, return receipt
requested (or equivalent service from a commercial carrier), addressed to
the person to be served at his or her last known principal place of
business or residence. A decision to deny a subpoena can only be appealed
as part of an appeal of any adverse decision which results from the
hearing.

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§ 10.620   Who pays the
costs associated with subpoenas?

(a) Witnesses who are not employees or former employees of the Federal
Government shall be paid the same fees and mileage as paid for like
services in the District Court of the United States where the subpoena is
returnable, except that expert witnesses shall be paid a fee not to exceed
the local customary fee for such services.

(b) Where OWCP asked that the witness submit evidence into the case
record or asked that the witness attend, OWCP shall pay the fees and
mileage. Where the claimant requested the subpoena, and where the witness
submitted evidence into the record at the request of the claimant, the
claimant shall pay the fees and mileage.

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§ 10.621   What is the
employer's role when an oral hearing has been requested?

(a) The employer may send one (or more, if deemed appropriate by the
hearing representative) representative(s) to observe the proceeding, but
the agency representative cannot give testimony or argument or otherwise
participate in the hearing, except where the claimant or the hearing
representative specifically asks the agency representative to testify.

(b) The hearing representative may deny a request by the claimant that
the agency representative testify where the claimant cannot show that the
testimony would be relevant or where the agency representative does not
have the appropriate level of knowledge to provide such evidence at the
hearing. The employer may also comment on the hearing transcript, as
described in § 10.617(e).

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§ 10.622   May a claimant
or representative withdraw a request for or postpone a hearing?

(a) The claimant and/or representative may withdraw the hearing request
at any time up to and including the day the hearing is held, or the
decision issued. Withdrawing the hearing request means the record is
returned to the jurisdiction of the district office and no further
requests for a hearing on the underlying decision will be considered.

(b) OWCP will entertain any reasonable request for scheduling the oral
hearing, including whether to participate by teleconference,
videoconference or other electronic means, but such requests should be
made at the time of the original application for hearing. Scheduling
(including format) is at the sole discretion of the hearing
representative, and is not reviewable.

(c) Once the oral hearing is scheduled and OWCP has mailed appropriate
written notice to the claimant and representative, OWCP will, upon
submission of proper written documentation of unavoidable serious
scheduling conflicts (such as court-ordered appearances/trials, jury duty
or previously scheduled outpatient procedures), entertain requests from a
claimant or his representative for rescheduling as long as the hearing can
be rescheduled on the same monthly docket, generally no more than 7 days
after the originally scheduled time. When a request to postpone a
scheduled hearing under this subsection cannot be accommodated on the
docket, no further opportunity for an oral hearing will be provided.
Instead, the hearing will take the form of a review of the written record
and a decision issued accordingly.

(d) Where the claimant or representative is hospitalized for a
non-elective reason or where the death of the claimant's or
representative's parent, spouse, child or other immediate family prevents
attendance at the hearing, OWCP will, upon submission of proper
documentation, grant a postponement beyond one monthly docket.

(e) Decisions regarding rescheduling under paragraphs (b) through (d)
of this section are within the sole discretion of the hearing
representative and are not reviewable.

(f) A claimant who fails to appear at a scheduled hearing may request
in writing within 10 days after the date set for the hearing that another
hearing be scheduled. Where good cause for failure to appear is shown,
another hearing will be scheduled and conducted by teleconference. The
failure of the claimant to request another hearing within 10 days, or the
failure of the claimant to appear at the second scheduled hearing without
good cause shown, shall constitute abandonment of the request for a
hearing. Where good cause is shown for failure to appear at the second
scheduled hearing, review of the matter will proceed as a review of the
written record.

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Review by the Employees' Compensation Appeals
Board (ECAB)

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§ 10.625   What kinds of
decisions may be appealed?

Only final decisions of OWCP may be appealed to the ECAB. However,
certain types of final decisions, described in this part as not subject to
further review, cannot be appealed to the ECAB. Decisions that are not
appealable to the ECAB include: Decisions concerning the amounts payable
for medical services, decisions concerning exclusion and reinstatement of
medical providers, decisions by the Director to review an award on his or
her own motion, and denials of subpoenas independent of the appeal of the
underlying decision. In appeals before the ECAB, attorneys from the Office
of the Solicitor of Labor shall represent OWCP.

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§ 10.626   Who has
jurisdiction of cases on appeal to the ECAB?

While a case is on appeal to the ECAB, OWCP has no jurisdiction over
the claim with respect to issues which directly relate to the issue or
issues on appeal. The OWCP continues to administer the claim and retains
jurisdiction over issues unrelated to the issue or issues on appeal and
issues which arise after the appeal as a result of ongoing administration
of the case. Such issues would include, for example, the ability to
terminate benefits where an individual returns to work while an appeal is
pending at the ECAB. ECAB's rules of procedure are found at part 501 of
this title.

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Subpart H—Special Provisions

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Representation

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§ 10.700   May a claimant
designate a representative?

(a) The claims process under the FECA is informal. Unlike many workers'
compensation laws, the employer is not a party to the claim, and OWCP acts
as an impartial evaluator of the evidence. Nevertheless, a claimant may
appoint one individual to represent his or her interests, but the
appointment must be in writing.

(b) There can be only one representative at any one time, so after one
representative has been properly appointed, OWCP will not recognize
another individual as representative until the claimant withdraws the
authorization of the first individual. In addition, OWCP will recognize
only certain types of individuals (see § 10.701); however if the
representative is an attorney, OWCP may communicate with any member of
that attorney's recognized law firm.

(c) A properly appointed representative who is recognized by OWCP may
make a request or give direction to OWCP regarding the claims process,
including a hearing. This authority includes presenting or eliciting
evidence, making arguments on facts or the law, and obtaining information
from the case file, to the same extent as the claimant.

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§ 10.701   Who may serve
as a representative?

A claimant may authorize any individual to represent him or her in
regard to a claim under the FECA, unless that individual's service as a
representative would violate any applicable provision of law (such as 18
U.S.C. 205 and 208). A Federal employee may act as a representative
only:

(a) On behalf of immediate family members, defined as a spouse,
children, parents, and siblings of the representative, provided no fee or
gratuity is charged; or

(b) While acting as a union representative, defined as any officially
sanctioned union official, and no fee or gratuity is charged.

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§ 10.702   How are fees
for services paid?

(a) A representative may charge the claimant a fee and other costs
associated with the representation before OWCP. The claimant is solely
responsible for paying the fee and other charges. The claimant will not be
reimbursed by OWCP, nor is OWCP in any way liable for the amount of the
fee. Contingency fees are not allowed in any form.

(b) Administrative costs (mailing, copying, messenger services, travel
and the like, but not including secretarial services, paralegal and other
activities) need not be approved before the representative collects them.
Before any fee for services can be collected, however, the fee must be
approved by the Secretary.

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§ 10.703   How are fee
applications approved?

(a) Fee application. The
representative must submit the fee application to OWCP for services
rendered before OWCP. (Representative services before ECAB must be
approved by ECAB under 20 CFR part 501.) The application submitted to OWCP
shall contain the following:

(1) An itemized statement showing the representative's hourly rate, the
number of hours worked and specifically identifying the work performed and
a total amount charged for the representation (excluding administrative
costs).

(2) A statement of agreement or disagreement with the amount charged,
signed by the claimant. The statement must also acknowledge that the
claimant is aware that he or she must pay the fees and that OWCP is not
responsible for paying the fee or other costs.

(b) Approval where there is no
dispute. Where a fee application that describes the services
rendered in accordance with paragraph (a)(1) of this section is
accompanied by a signed statement indicating the claimant's agreement with
the fee as described in paragraph (a)(2) of this section, the application
is deemed approved except that no contingency fee arrangement may be
considered deemed approved through this process.

(c) Disputed requests. (1)
Where the claimant disagrees with the amount of the fee, as indicated in
the statement accompanying the submittal, OWCP will evaluate the objection
and decide whether or not to approve the request. OWCP will provide a copy
of the request to the claimant and ask him or her to submit any further
information in support of the objection within 15 days from the date the
request is forwarded. After that period has passed, OWCP will evaluate the
information received to determine whether the amount of the fee is
substantially in excess of the value of services received by looking at
the following factors:

(i) Usefulness of the representative's services;

(ii) The nature and complexity of the claim;

(iii) The actual time spent on development and presentation of the
claim; and

(iv) Customary local charges for services for a representative of
similar background and experience.

(2) Where the claimant disputes the representative's request and files
an objection with OWCP, an appealable decision will be issued.

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§ 10.704   What penalties
apply to representatives who collect a fee without approval?

Representatives who collect a fee without proper approval from OWCP may
be charged with a misdemeanor under 18 U.S.C. 292.

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Third Party Liability

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§ 10.705   When must an
employee or other FECA beneficiary take action against a third party?

(a) If an injury or death for which benefits are payable under the FECA
is caused, wholly or partially, by someone other than a Federal employee
acting within the scope of his or her employment, the claimant can be
required to take action against that third party.

(b) The Office of the Solicitor of Labor (SOL) is hereby delegated
authority to administer the subrogation aspects of certain FECA claims for
OWCP. Either OWCP or SOL can require a FECA beneficiary to assign his or
her claim for damages to the United States or to prosecute the claim in
his or her own name. All information regarding subrogation claims
administered by SOL should be submitted to Chief, Subrogation Unit, U.S.
Department of Labor, Office of the Solicitor, 200 Constitution Avenue,
NW., Room S4325, Washington, DC 20210.

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§ 10.706   How will a
beneficiary know if OWCP or SOL has determined that action against a third
party is required?

When OWCP determines that an employee or other FECA beneficiary must
take action against a third party, it will notify the employee or
beneficiary in writing. If the case is transferred to SOL, a second
notification may be issued.

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§ 10.707   What must a
FECA beneficiary who is required to take action against a third party do
to satisfy the requirement that the claim be “prosecuted”?

At a minimum, a FECA beneficiary must do the following:

(a) Seek damages for the injury or death from the third party, either
through an attorney or on his or her own behalf;

(b) Either initiate a lawsuit within the appropriate statute of
limitations period or obtain a written release of this obligation from
OWCP or SOL unless recovery is possible through a negotiated settlement
prior to filing suit;

(c) Refuse to settle or dismiss the case for any amount less than the
amount necessary to repay OWCP's refundable disbursements, as defined in
§ 10.714, without receiving permission from OWCP or SOL;

(d) Provide periodic status updates and other relevant information in
response to requests from OWCP or SOL;

(e) Submit detailed information about the amount recovered and the
costs of the suit on a “Statement of Recovery” form approved by OMB;

(f) Submit information regarding the names of all plaintiffs to the
suit or settlement and their relationship to the injured employee, if not
the same as the FECA beneficiary;

(g) If any portion of the settlement or judgment was paid to more than
one individual, advise whether it was indicated in the settlement or
judgment the amount each individual is to receive, and if so, the
percentage of the total award;

(h) Advise whether any portion of the settlement or judgment was paid
in more than one capacity, such as a joint payment to a husband and wife
for personal injury and loss of consortium or a payment to a spouse
representing both loss of consortium and wrongful death; and

(i) Pay any required refund.

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§ 10.708   Can a FECA
beneficiary who refuses to comply with a request to assign a claim to the
United States or to prosecute the claim in his or her own name be
penalized?

When a FECA beneficiary refuses a request to either assign a claim or
prosecute a claim in his or her own name, OWCP may determine that he or
she has forfeited his or her right to all past or future compensation for
the injury with respect to which the request is made. Alternatively, OWCP
may also suspend the FECA beneficiary's compensation payments until he or
she complies with the request.

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§ 10.709   What happens
if a beneficiary directed by OWCP or SOL to take action against a third
party does not believe that a claim can be successfully prosecuted at a
reasonable cost?

If a beneficiary consults an attorney and is informed that a suit for
damages against a third party for the injury or death for which benefits
are payable is unlikely to prevail or that the costs of such a suit are
not justified by the potential recovery, he or she should request that
OWCP or SOL release him or her from the obligation to proceed. This
request should be in writing and provide evidence of the attorney's
opinion. If OWCP or SOL agrees, the beneficiary will not be required to
take further action against the third party.

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§ 10.710   Under what
circumstances must a recovery of money or other property in connection
with an injury or death for which benefits are payable under the FECA be
reported to OWCP or SOL?

Any person who has filed a FECA claim that has been accepted by OWCP
(whether or not compensation has been paid), or who has received FECA
benefits in connection with a claim filed by another, is required to
notify OWCP or SOL of the receipt of money or other property as a result
of a settlement or judgment in connection with the circumstances of that
claim. This includes an injured employee, and in the case of a claim
involving the death of an employee, a spouse, children or other dependents
entitled to receive survivor's benefits. OWCP or SOL should be notified in
writing within 30 days of the receipt of such money or other property or
the acceptance of the FECA claim, whichever occurs later.

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§ 10.711   How is the
amount of the recovery of the FECA beneficiary determined?

(a) When a FECA beneficiary is entitled to receive money as a result of
a judgment entered in a lawsuit or settlement of a lawsuit or any other
settlement or recovery from a responsible third party, the entire amount
of the award is reported as the gross recovery. To determine the amount of
the recovery of the FECA beneficiary, deductions are made for the portion
representing damage to real or personal property, the portion representing
loss of consortium, the portion representing wrongful death and the
portion representing a survival action. To make deductions for loss of
consortium, wrongful death and survival action, it must be established
that:

(1) These claims were asserted in the suit (or if there was no suit
that these claims were included in the settlement or recovery); and

(2) That such claims are permissible under the state law where the
action was brought.

(b) OWCP or SOL will determine the appropriate percentage of the total
judgment or settlement that will be allocated for loss of consortium,
wrongful death action and survival action. FECA beneficiaries may accept
OWCP's or SOL's determination or demonstrate good cause in writing for a
different allocation. Whether to accept a specific allocation is at the
discretion of OWCP or SOL, even where it has been incorporated into the
settlement agreement. OWCP or SOL will not determine the appropriate
percentage to be allocated for loss of consortium, wrongful death action
and survival action if a judge or jury specifies the percentage to be
awarded of a contested verdict attributable to each of several plaintiffs;
in such case, OWCP or SOL will accept that percentage allocation.

(c) The amount of the recovery of the FECA beneficiary will be
determined as followed:

(1) If a settlement or judgment is paid to or for one individual, the
recovery is the gross recovery less the portion representing damage to
real or personal property. The portion representing damage to real or
personal property must be established in writing and approved by OWCP or
SOL.

(2) In any case involving an injury to an employee where a judgment or
settlement is paid to or on behalf of more than one individual, the
recovery is the gross recovery less the portion representing damage to
real or personal property and less the portion representing loss of
consortium. OWCP or SOL will allocate up to 25% for a spouse and up to 5%
for each child not to exceed 15% for all children for loss of
consortium.

(3) In any case involving the death of an employee, where both wrongful
death and survival actions have been asserted, separate statements of
recovery are completed for the deceased employee and the surviving FECA
beneficiaries. For the deceased employee, the recovery is the gross
recovery less the portion representing damage to real or personal
property, less the portion representing loss of consortium, less the
portion representing the wrongful death action. For the surviving spouse
and children, the recovery is the gross recovery less the portion
representing damage to real or personal property, less the portion
representing loss of consortium, less the portion representing the
survival action. OWCP or SOL will allocate the total judgment or
settlement as follows:

(i) For loss of consortium, OWCP or SOL will allocate up to 15% for a
spouse and up to 5% for each child not to exceed 10% for all children;

(ii) For the wrongful death action, OWCP or SOL will allocate 65% of
the remainder after subtraction of the amounts attributed to loss of
consortium;

(iii) For the survival action, OWCP or SOL will allocate 35% percent of
the remainder after subtraction of the amounts attributed to loss of
consortium.

(d) In any case involving an injury to an employee where a judgment or
settlement is paid to or on behalf of more than one individual and in any
case involving the death of an employee, court costs will be attributed
using the same percentages as was used for loss of consortium, wrongful
death action and survival action. Attorney fees will be determined using
the same percentage that was used for the gross recovery. These
calculations are used only for the purpose of determining the amount of
the refund and if applicable the surplus.

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§ 10.712   How much of
any settlement or judgment must be paid to the United States?

The statute permits a FECA beneficiary to retain, as a minimum,
one-fifth of the net amount of money or property remaining after a
reasonable attorney's fee and the costs of litigation have been deducted
from the third-party recovery. The United States shares in the attorney
fees by allowing the beneficiary to retain, at the time of distribution,
an amount equivalent to a reasonable attorney's fee proportionate to the
refund due the United States. After the refund owed to the United States
is calculated, the FECA beneficiary retains any surplus remaining, and
this amount is credited, dollar for dollar, against future compensation
including wage-loss compensation, schedule award benefits and medical
benefits for the same injury, as defined in § 10.719. OWCP will
resume the payment of compensation only after the FECA beneficiary has
been awarded compensation which exceeds the amount of the surplus.

(a) The refund to the United States is calculated as follows, using the
Statement of Recovery form approved by OMB:

(1) Determine the amount of the recovery of the FECA beneficiary as set
forth in § 10.711 as follows:

(i) Set out the gross recovery which is the entire amount of the
award;

(ii) Subtract the amount of award representing damage to real or
personal property approved by OWCP or SOL (Subtotal A);

(iii) Multiply Subtotal A by the appropriate percentage in
§ 10.711(c), or if it is a contested verdict by the percentage
allocated by the judge or jury, and subtract this amount from Subtotal A
(Subtotal B);

(iv) If both a wrongful death action and survival action have been
asserted, multiply Subtotal B by 65% to determine the amount allocated to
the wrongful death case and multiply Subtotal B by 35% to determine the
amount allocated to the survival action, or if it is a contested verdict,
by the percentage allocated by the judge or jury. Separate Statements of
Recovery must be completed for each cause of action. For the wrongful
death action use the result of Subtotal B times 65% for Subtotal C and for
the survival action use the result of Subtotal B times 35% for Subtotal C.
If both a wrongful death and survival have not been asserted the amount in
Subtotal B is used for Subtotal C;

(v) Subtotal C is the amount of recovery of the FECA beneficiary;

(2) Subtract the amount of attorney's fees actually paid, but not more
than the maximum amount of attorney's fees considered by OWCP or SOL to be
reasonable, from Subtotal C. This is calculated by first determining the
attorney fee percentage which is determined by dividing the gross recovery
into the amount of attorney's fees actually paid, but the attorney's fee
amount must not be more than the maximum amount of attorney's fees
considered to be reasonable by OWCP or SOL and must be approved by OWCP or
SOL. Subtotal C is multiplied by the fee percentage and this amount is
subtracted from Subtotal C (Subtotal D);

(3) Subtract the costs of litigation, as allowed by OWCP or SOL from
Subtotal D (Subtotal E). If loss of consortium and/or wrongful death and
survival actions are claimed, the costs of litigation are reduced first by
the percentage used for loss of consortium and then by the percentage used
for wrongful death or survival action as set forth in § 10.711;

(4) Multiply Subtotal E by 20% and subtract this amount from Subtotal E
(Subtotal F);

(5) Compare Subtotal F and the refundable disbursements as defined in
§ 10.714. Subtotal G is the lower of the two amounts;

(6) Multiply Subtotal G by the percentage used for attorney's fees in
paragraph (a)(2), to determine the Government's allowance for attorney's
fees, and subtract this amount from Subtotal G. This is the amount of the
refund.

(b) The credit against future benefits (also referred to as the
surplus) is calculated as follows:

(1) If Subtotal F, as calculated according to paragraph (a)(4) of this
section, is less than the refundable disbursements, as defined in
§ 10.714, there is no credit to be applied against future benefits
(but the remainder of the unused disbursements must be applied to any
future recovery for the same injury);

(2) If Subtotal F is greater than the refundable disbursements, the
credit against future benefits (or surplus) amount is determined by
subtracting the refundable disbursements from Subtotal F.

(c) Examples of how these calculations are made follows:

(1) In this example, a Federal employee sues another party for causing
injuries for which the employee has received $22,000 in benefits under the
FECA, subject to refund. The suit is settled and the injured employee
receives $100,000, all of which was for his injury. The injured worker
paid attorney's fees of $25,000 and costs for the litigation of
$3,000.

(i) Gross Recovery

$100,000.00

(ii) Amount of Property
Damage

$0.00

(iii) Subtotal A (Line a
minus Line b)

$100,000.00

(iv) Amount Allocated for
Loss of Consortium 0% of Line c

$0.00

(v) Subtotal B (Line c
minus Line d)

$100,000.00

(vi) Amount Allocated for
Wrongful Death 0% of Line e

$0.00

(vii) Amount Allocated
for Survival Action 0% of Line e

$0.00

(viii) Subtotal C—If
Wrongful Death use Line f, if survival action use Line g, otherwise
use Subtotal B

$100,000.00

(ix) Attorney's Fees 25%
(Line h × .25)

$25,000.00

(x) Subtotal D (Line h
minus Line i)

$75,000.00

(xi) Court costs

$3,000.00

(xii) Subtotal E (Line j
minus Line k)

$72,000.00

(xiii) One-fifth of
Subtotal E (Line l × .20)

$14,400.00

(xiv) Subtotal F (Line l
minus Line m)

$57,600.00

(xv) Refundable
Disbursements

$22,000.00

(xvi) Subtotal G (lower
of Subtotal F or refundable disbursements)

$22,000.00

(xvii) Government's
allowance for attorney's fees (attorney's fees percentage used to
determine Subtotal D multiplied by Subtotal G)

$5,500.00

(xviii) Refund to the
United States (Line p minus Line q)

$16,500.00

(xix) Credit against
future benefits (If Subtotal F greater than refundable
disbursements, Line n minus Line o)

$35,600.00

(2) In this example, a Federal employee who is married sues another
party for causing injuries as a result of car accident where she was
driving her personally owned vehicle on approved travel and the employee
received $75,000 in disbursements. The suit includes a claim for loss of
consortium which is permitted under the state law and for damage to her
vehicle (documented at $50,000.00). A joint settlement is reached where
the injured employee and her spouse receive $250,000 for all their claims.
Attorney's fees were $83,325 and there were $25,000 in approved court
costs.

(i) Gross Recovery

$250,000.00

(ii) Amount of Property
Damage

$50,000.00

(iii) Subtotal A (Line a
minus Line b)

$200,000.00

(iv) Amount Allocated for
Loss of Consortium (25% of Line c)

$50,000.00

(v) Subtotal B (Line c
minus Line d)

$150,000.00

(vi) Amount Allocated for
Wrongful Death 0% of Line e

$0.00

(vii) Amount Allocated
for Survival Action 0% of Line e

$0.00

(viii) Subtotal C—If
Wrongful Death Use Line f, if survival action use Line g, otherwise
use Subtotal B

$150,000.00

(ix) Attorney's Fees
33.33% (line h × .3333)

$49,995.00

(x) Subtotal D (Line h
minus Line i)

$100,005.00

(xi) Court costs are
reduced by the amount allocated for the loss of consortium (in this
example, $25,000 − ($25,000 × .25))

$18,750.00

(xii) Subtotal E (line j
minus Line k)

$81,255.00

(xiii) One-fifth of
Subtotal E (Line l × .20)

$16,251.00

(xiv) Subtotal F (Line l
minus Line m)

$65,004.00

(xv) Refundable
Disbursements

$75,000.00

(xvi) Subtotal G (lower
of Subtotal F or refundable disbursements)

$65,004.00

(xvii) Government's
allowance for attorney's fees (attorney's fees percentage used to
determine Subtotal D multiplied by subtotal G)

$21,665.83

(xviii) Refund to the
United States (Line p minus Line q)

$43,338.17

(xix) Credit against
future benefits (If Subtotal F is greater than refundable
disbursements, Line n minus Line o)

$0.00

(3) In this example, a Federal employee who is married with two minor
children is killed in the performance of duty. A suit for wrongful death
and survival is filed which includes claims for loss of consortium all of
which is permitted under state law. A joint settlement is reached for all
claims and all parties in the amount of $1,000,000. There were court costs
of $48,000 and attorney's fees of $300,000. Two Statements of Recovery are
completed: One for the wrongful death claim and the other for the survival
action. Disbursements in this case were $30,000 for the deceased employee
and $100,000 for the surviving spouse and children.

(i) For the wrongful death claim the calculation is as follows:

(A) Gross Recovery

$1,000.000.00

(B) Amount of Property
Damage

$0.00

(C) Subtotal A (Line a
minus Line b)

$1,000,000.00

(D) Amount Allocated for
Loss of Consortium (25% (15% for spouse, 5% for each child) of Line
c)

$250,000.00

(E) Subtotal B (Line c
minus Line d)

$750,000.00

(F) Amount Allocated for
Wrongful Death 65% of Line e

$487,500.00

(G) Amount Allocated for
Survival Action 35% of Line e

$262,500.00

(H) Subtotal C—If
Wrongful Death Use Line f, if survival action use Line g, otherwise
use Subtotal B

$487,500.00

(I) Attorney's Fees 30%
(Line h × .30)

$146,250.00

(J) Subtotal D (Line h
minus Line i)

$341,250.00

(K) Court costs are
reduced by the amount allocated for the loss of consortium (in this
example, .25 × $48,000 = 12,000) and then by the amount allocated
for survivor action, [(48,000 − 12,000) × .35 = 12,600], [48,000 −
12,000 − 12,600])

$23,400.00

(L) Subtotal E (Line j
minus Line k)

$317,850.00

(M) One-fifth of Subtotal
E (Line l × .20)

$63,570.00

(N) Subtotal F (Line l
minus Line m)

$254,280.00

(O) Refundable
Disbursements

$100,000.00

(P) Subtotal G (lower of
Subtotal F or refundable disbursements)

$100,000.00

(Q) Government's
allowance for attorney's fees (attorney's fees percentage used to
determine Subtotal D multiplied by subtotal G)

$30,000.00

(R) Refund to the United
States (Line p minus Line q)

$70,000.00

(S) Credit against future
benefits (If Subtotal F is greater than refundable disbursements,
Line n minus Line o)

$154,280.00

(ii) For the survival claim the calculation is as follows:

(A) Gross Recovery

$1,000.000.00

(B) Amount of Property
Damage

$0.00

(C) Subtotal A (Line a
minus Line b)

$1,000,000.00

(D) Amount Allocated for
Loss of Consortium (25% (15% for spouse, 5% for each child) of Line
c)

$250,000.00

(E) Subtotal B (Line c
minus Line d)

$750,000.00

(F) Amount Allocated for
Wrongful Death 65% of Line e

$487,500.00

(G) Amount Allocated for
Survival Action 35% of Line e

$262,500.00

(H) Subtotal C—If
Wrongful Death Use Line f, if survival action use Line g, otherwise
use Subtotal B

$262,500.00

(I) Attorney's Fees 30%
(line h × .30)

$78,750.00

(J) Subtotal D (Line h
minus Line i)

$183,750.00

(K) Court costs are
reduced by the amount allocated for the loss of consortium (in this
example, .25 × $48,000 = 12,000) and then by the amount allocated
for wrongful death, [(48,000 − 12,000) × .65 = 23,400], [48,000 −
12,000 − 23,400])

$12,600.00

(L) Subtotal E (Line j
minus Line k)

$171,150.00

(M) One-fifth of Subtotal
E (Line l × .20)

$34,230.00

(N) Subtotal F (Line l
minus Line m)

$136,920.00

(O) Refundable
Disbursements

$30,000.00

(P) Subtotal G (lower of
Subtotal F or refundable disbursements)

$30,000.00

(Q) Government's
allowance for attorney's fees (attorney's fees percentage used to
determine Subtotal D multiplied by subtotal G)

$9,000.00

(R) Refund to the United
States (Line p minus Line q)

$21,000.00

(S) Credit against future
benefits (If Subtotal F is greater than refundable disbursements,
Line n minus Line o)

$106,920.00

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§ 10.713   How is a
structured settlement (that is, a settlement providing for receipt of
funds over a specified period of time) treated for purposes of reporting
the gross recovery?

In this situation, the gross recovery to be reported is the present
value of the right to receive all of the payments included in the
structured settlement, allocated in the case of multiple recipients in the
same manner as single payment recoveries.

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§ 10.714   What amounts
are included in the refundable disbursements?

The refundable disbursements of a specific claim consist of the total
money paid by OWCP from the Employees' Compensation Fund with respect to
that claim to or on behalf of a FECA beneficiary including charges for
field nurses, vocational rehabilitation, and second opinion and referee
physicians, less charges for any medical file review ( i.e., the physician does not examine the
employee) done at the request of OWCP. Charges for medical examinations
also may be subtracted if the FECA beneficiary establishes that the
examinations were required to be made available to the employee under a
statute other than the FECA by the employing agency or at the employing
agency's cost. Requests for disbursements can be made to SOL or OWCP.

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§ 10.715   Is a
beneficiary required to pay interest on the amount of the refund due to
the United States?

If the refund due to the United States is not submitted within 30 days
of receiving a request for payment from SOL or OWCP, interest shall accrue
on the refund due to the United States from the date of the request. The
rate of interest assessed shall be the rate of the current value of funds
to the United States Treasury as published in the   Federal Register
(as of the date the request for payment is sent). Waiver of the
collection of interest shall be in accordance with the provisions of the
Department of Labor regulations on Federal Claims Collection governing
waiver of interest, 29 CFR 20.61.

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§ 10.716   If the
required refund is not paid within 30 days of the request for repayment,
can it be collected from payments due under the FECA?

If the required refund is not paid within 30 days of the request for
payment, OWCP can, in its discretion, collect the refund by withholding
all or part of any payments currently payable to the beneficiary under the
FECA with respect to any injury. The waiver provisions of §§ 10.432
through 10.440 do not apply to such determinations.

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§ 10.717   Is a
settlement or judgment received as a result of allegations of medical
malpractice in treating an injury covered by the FECA a gross recovery
that must be reported to OWCP or SOL?

Since an injury caused by medical malpractice in treating an injury
covered by the FECA is also an injury covered under the FECA, any recovery
in a suit alleging such an injury is treated as a gross recovery that must
be reported to OWCP or SOL.

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§ 10.718   Are payments
to a beneficiary as a result of an insurance policy which the beneficiary
has purchased a gross recovery that must be reported to OWCP or SOL?

Since payments received by a FECA beneficiary pursuant to an insurance
policy purchased by someone other than a liable third party are not
payments in satisfaction of liability for causing an injury covered by the
FECA, they are not considered a gross recovery covered by section 8132
that requires filing a Statement of Recovery and paying any required
refund.

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§ 10.719   If a
settlement or judgment is received for more than one wound or medical
condition, can the refundable disbursements paid on a single FECA claim be
attributed to different conditions for purposes of calculating the refund
or credit owed to the United States?

(a) All wounds, diseases or other medical conditions accepted by OWCP
in connection with a single claim are treated as the same injury for the
purpose of computing any required refund and any credit against future
benefits in connection with the receipt of a recovery from a third party,
except that an injury caused by medical malpractice in treating an injury
covered under the FECA will be treated as a separate injury for purposes
of section 8132.

(b) If an injury covered under the FECA is caused under circumstances
creating a legal liability in more than one person, other than the United
States, to pay damages, OWCP or SOL will determine whether recoveries
received from one or more third parties should be attributed to separate
conditions for which compensation is payable in connection with a single
FECA claim. If such an attribution is both practicable and equitable, as
determined by OWCP or SOL, in its discretion, the conditions will be
treated as separate injuries for purposes of calculating the refund and
credit owed to the United States under section 8132.

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Federal Grand and Petit Jurors

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§ 10.725   When is a
Federal grand or petit juror covered under the FECA?

(a) Federal grand and petit jurors are covered under the FECA when they
are in performance of duty as a juror, which includes that time when a
juror is:

(1) In attendance at court pursuant to a summons;

(2) In deliberation;

(3) Sequestered by order of a judge; or

(4) At a site, by order of the court, for the taking of a view.

(b) A juror is not considered to be in the performance of duty while
traveling to or from home in connection with the activities enumerated in
paragraphs (a) (1) through (4) of this section.

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§ 10.726   When does a
juror's entitlement to disability compensation begin?

Pursuant to 28 U.S.C. 1877, entitlement to disability compensation does
not commence until the day after the date of termination of service as a
juror.

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§ 10.727   What is the
pay rate of jurors for compensation purposes?

For the purpose of computing compensation payable for disability or
death, a juror is deemed to receive pay at the minimum rate for Grade GS-2
of the General Schedule unless his or her actual pay as an “employee” of
the United States while serving on court leave is higher, in which case
the pay rate for compensation purposes is determined in accordance with 5
U.S.C. 8114.

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Peace Corps Volunteers

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§ 10.730   What are the
conditions of coverage for Peace Corps volunteers and volunteer leaders
injured while serving outside the United States?

(a) Any injury sustained by a volunteer or volunteer leader while he or
she is located abroad is deemed proximately caused by Peace Corps
employment and will be found by OWCP to have been sustained in the
performance of duty, and any illness contracted while that volunteer is
located abroad will be found by OWCP to be proximately caused by the
employment unless the evidence establishes:

(1) The injury or illness was caused by the claimant's willful
misconduct, intent to bring about the injury or death of self or another,
or was proximately caused by the intoxication by alcohol or illegal drugs
of the injured claimant; or

(2) The illness is shown to have pre-existed the period of service
abroad; or

(3) The injury or illness claimed is a manifestation of symptoms of, or
consequent to, a pre-existing congenital defect or abnormality.

(b) If the OWCP finds that the evidence indicates that the injury or
illness may not have been sustained in the performance of duty due to the
circumstances enumerated in paragraph (a)(2) and (3) of this section, the
claimant may still prove his claim by the submittal of substantial and
probative evidence that such injury or illness was sustained in the
performance of duty with the Peace Corps.

(c) If an injury or illness, or episode thereof, comes within one of
the exceptions described in paragraph (a)(2) or (3) of this section, the
claimant may nonetheless be entitled to compensation. This will be so
provided he or she meets the burden of proving by the submittal of
substantial, probative and rationalized medical evidence that the illness
or injury was proximately caused by factors or conditions of Peace Corps
service, or that it was materially aggravated, accelerated or precipitated
by factors of Peace Corps service; if the injury or illness was
temporarily aggravated by factors of Peace Corps service, disability
compensation is payable for the period of such aggravation.

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§ 10.731   What is the
pay rate of Peace Corps volunteers and volunteer leaders for compensation
purposes?

The pay rate for these claimants is defined as the pay rate in effect
on the date following separation, provided that the rate equals or exceeds
the pay rate on the date of injury. It is defined in accordance with 5
U.S.C. 8142(a), not 8101(4).

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Non-Federal Law Enforcement Officers

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§ 10.735   When is a
non-Federal law enforcement officer (LEO) covered under the FECA?

(a) A law enforcement officer (officer) includes an employee of a State
or local Government, the Governments of U.S. possessions and territories,
or an employee of the United States pensioned or pensionable under
sections 521-535 of Title 4, D.C. Code, whose functions include the
activities listed in 5 U.S.C. 8191.

(b) Benefits are available to officers who are not “employees” under 5
U.S.C. 8101, and who are determined in the discretion of OWCP to have been
engaged in the activities listed in 5 U.S.C. 8191 with respect to the
enforcement of crimes against the United States. Individuals who only
perform administrative functions in support of officers are not considered
officers.

(c) Except as provided by 5 U.S.C. 8191 and 8192 and elsewhere in this
part, the provisions of the FECA and of subparts A, B, and D through I of
this part apply to officers.

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§ 10.736   What are the
time limits for filing a LEO claim?

OWCP must receive a claim for benefits under 5 U.S.C. 8191 within five
years after the injury or death. This five-year limitation is not subject
to waiver. The tolling provisions of 5 U.S.C. 8122(d) do not apply to
these claims.

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§ 10.737   How is a LEO
claim filed, and who can file a LEO claim?

A claim for injury or occupational disease should be filed on Form
CA-721; a death claim should be filed on Form CA-722. All claims should be
submitted to the officer's employer for completion and forwarding to OWCP.
A claim may be filed by the officer, the officer's survivor, or any person
or association authorized to act on behalf of an officer or an officer's
survivors.

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§ 10.738   Under what
circumstances are benefits payable in LEO claims?

(a) Benefits are payable when an officer is injured while apprehending,
or attempting to apprehend, an individual for the commission of a Federal
crime. However, either an actual Federal crime must be in progress or have
been committed, or objective evidence (of which the officer is aware at
the time of injury) must exist that a potential Federal crime was in
progress or had already been committed. The actual or potential Federal
crime must be an integral part of the criminal activity toward which the
officer's actions are directed. The fact that an injury to an officer is
related in some way to the commission of a Federal crime does not
necessarily bring the injury within the coverage of the FECA. The FECA is
not intended to cover officers who are merely enforcing local laws.

(b) For benefits to be payable when an officer is injured preventing,
or attempting to prevent, a Federal crime, there must be objective
evidence that a Federal crime is about to be committed. An officer's
belief, unsupported by objective evidence, that he or she is acting to
prevent the commission of a Federal crime will not result in coverage.
Moreover, the officer's subjective intent, as measured by all available
evidence (including the officer's own statements and testimony, if
available), must have been directed toward the prevention of a Federal
crime. In this context, an officer's own statements and testimony are
relevant to, but do not control, the determination of coverage.

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§ 10.739   What kind of
objective evidence of a potential Federal crime must exist for coverage to
be extended?

Based on the facts available at the time of the event, the officer must
have an awareness of sufficient information which would lead a reasonable
officer, under the circumstances, to conclude that a Federal crime was in
progress, or was about to occur. This awareness need not extend to the
precise particulars of the crime (the section of Title 18, United States
Code, for example), but there must be sufficient evidence that the officer
was in fact engaged in actual or attempted apprehension of a Federal
criminal or prevention of a Federal crime.

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§ 10.740   In what
situations will OWCP automatically presume that a law enforcement officer
is covered by the FECA?

(a) Where an officer is detailed by a competent State or local
authority to assist a Federal law enforcement authority in the protection
of the President of the United States, or any other person actually
provided or entitled to U.S. Secret Service protection, coverage will be
extended.

(b) Coverage for officers of the U.S. Park Police and those officers of
the Uniformed Division of the U.S. Secret Service who participate in the
District of Columbia Retirement System is adjudicated under the principles
set forth in paragraph (a) of this section, and does not extend to
numerous tangential activities of law enforcement (for example, reporting
to work, changing clothes). However, officers of the Non-Uniformed
Division of the U.S. Secret Service who participate in the District of
Columbia Retirement System are covered under the FECA during the
performance of all official duties.

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§ 10.741   How are
benefits calculated in LEO claims?

(a) Except for continuation of pay, eligible officers and survivors are
entitled to the same benefits as if the officer had been an employee under
5 U.S.C. 8101. However, such benefits may be reduced or adjusted as OWCP
in its discretion may deem appropriate to reflect comparable benefits
which the officer or survivor received or would have been entitled to
receive by virtue of the officer's employment.

(b) For the purpose of this section, a comparable benefit includes any
benefit that the officer or survivor is entitled to receive because of the
officer's employment, including pension and disability funds, State
workers' compensation payments, Public Safety Officers' Benefits Act
payments, and State and local lump-sum payments. Health benefits coverage
and proceeds of life insurance policies purchased by the employer are not
considered to be comparable benefits.

(c) The FECA provides that, where an officer receives comparable
benefits, compensation benefits are to be reduced proportionally in a
manner that reflects the relative percentage contribution of the officer
and the officer's employer to the fund which is the source of the
comparable benefit. Where the source of the comparable benefit is a
retirement or other system which is not fully funded, the calculation of
the amount of the reduction will be based on a per capita comparison
between the contribution by the employer and the contribution by all
covered officers during the year prior to the officer's injury or
death.

(d) The non-receipt of compensation during a period where a dual
benefit (such as a lump-sum payment on the death of an officer) is being
offset against compensation entitlement does not result in an adjustment
of the respective benefit percentages of remaining beneficiaries because
of a cessation of compensation under 5 U.S.C. 8133(c).

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Subpart I—Information for Medical Providers

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Medical Records and Bills

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§ 10.800   How do
providers enroll with OWCP for authorizations and billing?

(a) All providers must enroll with OWCP or its designated bill
processing agent (hereinafter OWCP in this subpart) to have access to the
automated authorization system and to submit medical bills to OWCP. To
enroll, the provider must complete and submit a Form OWCP-1168 to the
appropriate location noted on that form. By completing and submitting this
form, providers certify that they satisfy all applicable Federal and State
licensure and regulatory requirements that apply to their specific
provider or supplier type. The provider must maintain documentary evidence
indicating that it satisfies those requirements. The provider is also
required to notify OWCP immediately if any information provided to OWCP in
the enrollment process changes. Agency medical officers, private
physicians and hospitals are also required to keep records of all cases
treated by them under the FECA so they can supply OWCP with a history of
the injury, a description of the nature and extent of injury, the results
of any diagnostic studies performed, the nature of the treatment rendered
and the degree of any impairment and/or disability arising from the
injury.

(b) Where a medical provider intends to bill for a procedure where
prior authorization is required, that provider must request such
authorization from OWCP.

(c) After enrollment, a provider must submit all medical bills to OWCP
through its bill processing portal and include the Provider Number/ID
obtained through enrollment or other identifying number required by
OWCP.

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§ 10.801   How are
medical bills to be submitted?

(a) All charges for medical and surgical treatment, appliances or
supplies furnished to injured employees, except for treatment and supplies
provided by nursing homes, shall be supported by medical evidence as
provided in § 10.800. OWCP may withhold payment for services until
such report or evidence is provided. The physician or provider shall
itemize the charges on Form OWCP-1500 or CMS-1500 (for professional
services or medicinal drugs dispensed in the office), Form OWCP-04 or
UB-04 (for hospitals), an electronic or paper-based bill that includes
required data elements (for pharmacies) or other form as warranted and
accepted by OWCP, and submit the form promptly to OWCP.

(b) The provider shall identify each service performed using the
Physician's Current Procedural Terminology (CPT) code, the Healthcare
Common Procedure Coding System (HCPCS) code, the National Drug Code (NDC),
or the Revenue Center Code (RCC) with a brief narrative description; OWCP
has discretion to determine which of these codes may be utilized in the
billing process. The Director also has the authority to create and supply
specific procedure codes that will be used by OWCP to better describe and
allow specific payments for special services. These OWCP-created codes
will be issued to providers by OWCP as appropriate and may only be used as
authorized by OWCP. For example, a physician conducting a referee or
second opinion examination under 5 U.S.C. 8123 will be furnished an
OWCP-created code; a provider may not use such an OWCP-created code for
other types of medical examinations or services. Where no appropriate code
is submitted to identify the services performed, the bill will be returned
to the provider and/or denied.

(c) For professional charges billed on Form OWCP-1500 or CMS-1500, the
provider shall also state each diagnosed condition and furnish the
corresponding diagnostic code using the “International Classification of
Disease, 9th Edition, Clinical Modification” (ICD-9-CM), or as revised. A
separate bill shall be submitted when the employee is discharged from
treatment or monthly, if treatment for the work-related condition is
necessary for more than 30 days.

(1) (i) Hospitals shall submit charges for inpatient medical and
surgical treatment or supplies promptly to OWCP on Form OWCP-04 or
UB-04.

(ii) For outpatient billing, the provider shall identify each service
performed, using Revenue Center Codes (RCCs) and HCPCS/CPT codes as
warranted. The charge for each individual service, or the total charge for
all identical services, should also appear on the form. OWCP may adopt an
Outpatient Prospective Payment System (OWCP OPPS) (as developed and
implemented by the Center for Medicare and Medicaid services (CMS) for
Medicare, while modifying the allowable costs under Medicare to account
for deductibles and other additional costs which are covered by FECA).
Once adopted, hospital providers shall submit outpatient hospital bills on
the current version of the Universal Billing Form (UB) and use HCPCS codes
and other coding schemes in accordance with the OWCP OPPS.

(2) Pharmacies shall itemize charges for prescription medications,
appliances, or supplies on electronic or paper-based bills and submit them
promptly to OWCP. Bills for prescription medications must include the NDC
assigned to the product, the generic or trade name of the drug provided,
the prescription number, the quantity provided, and the date the
prescription was filled.

(3) Nursing homes shall itemize charges for appliances, supplies or
services on the provider's billhead stationery and submit them promptly to
OWCP. Such charges shall be subject to any applicable OWCP fee
schedule.

(d) By submitting a bill and/or accepting payment, the provider
signifies that the service for which reimbursement is sought was performed
as described, necessary, appropriate and properly billed in accordance
with accepted industry standards. For example, accepted industry standards
preclude upcoding billed services for extended medical appointments when
the employee actually had a brief routine appointment, or charging for the
services of a professional when a paraprofessional or aide performed the
service; industry standards prohibit unbundling services to charge
separately for services that should be billed as a single charge. In
addition, the provider thereby agrees to comply with all regulations set
forth in this subpart concerning the rendering of treatment and/or the
process for seeking reimbursement for medical services, including the
limitation imposed on the amount to be paid for such services.

(e) In summary, bills submitted by providers must: Be itemized on the
Health Insurance Claim Form (for physicians) or the OWCP-04 (for
hospitals); contain the signature or signature stamp of the provider; and
identify the procedures using HCPCS/CPT codes, RCCs, or NDCs. Otherwise,
OWCP may deny the bill, and the provider must correct and resubmit the
bill.

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§ 10.802   How should an
employee prepare and submit requests for reimbursement for medical
expenses, transportation costs, loss of wages, and incidental
expenses?

(a) If an employee has paid bills for medical, surgical or dental
services, supplies or appliances due to an injury sustained in the
performance of duty and seeks reimbursement for those expenses, he or she
may submit a request for reimbursement on Form OWCP-915, together with an
itemized bill on Form OWCP-1500, CMS-1500, OWCP-04 or UB-04 prepared by
the provider and a medical report as provided in § 10.800, to
OWCP.

(1) The provider of such service shall state each diagnosed condition
and furnish the applicable ICD-9-CM code, or as revised, and identify each
service performed using the applicable HCPCS/CPT code, with a brief
narrative description of the service performed, or, where no code is
applicable, a detailed description of that service. If no code or
description is received, OWCP will deny the reimbursement request and
correction and resubmission will be required.

(2) The reimbursement request must be accompanied by evidence that the
provider received payment for the service from the employee and a
statement of the amount paid. Acceptable evidence that payment was
received includes, but is not limited to, a signed statement by the
provider, a mechanical stamp or other device showing receipt of payment, a
copy of the employee's canceled check (both front and back) or a copy of
the employee's credit card receipt or a form indicating a balance of zero
to the provider.

(b) If services were provided by a hospital, pharmacy or nursing home,
the employee should submit the bill in accordance with the provisions of
§ 10.801(a). Any request for reimbursement must be accompanied by
evidence, as described in paragraph (a) of this section, that the provider
received payment for the service from the employee and a statement of the
amount paid.

(c) OWCP may waive the requirements of paragraphs (a) and (b) of this
section if extensive delays in the filing or the adjudication of a claim
make it unusually difficult for the employee to obtain the required
information.

(d) OWCP will not accept copies of bills for reimbursement unless they
bear the signature of the provider, with evidence of payment. Payment for
medical and surgical treatment, appliances or supplies shall in general be
no greater than the maximum allowable charge for such service determined
by the Director, as set forth in § 10.805.

(e) An employee will be only partially reimbursed for a medical expense
if the amount he or she paid to a provider for the service exceeds the
maximum allowable charge set by the Director's schedule. If this happens,
OWCP shall advise the employee of the maximum allowable charge for the
service in question and of his or her responsibility to ask the provider
to refund to the employee, or credit to the employee's account, the amount
he or she paid which exceeds the maximum allowable charge. The provider
may request reconsideration of the fee determination as set forth in
§ 10.812.

(f) If the provider fails to make appropriate refund to the employee,
or to credit the employee's account, within 60 days after the employee
requests a refund of any excess amount, or the date of a subsequent
reconsideration decision which continues to disallow all or a portion of
the appealed amount, the provider shall be subject to exclusion procedures
as provided by § 10.815.

(g) If the provider does not refund to the employee or credit to his or
her account the amount of money paid in excess of the charge which OWCP
allows, the employee should submit documentation of the attempt to obtain
such refund or credit to OWCP. OWCP may make reasonable reimbursement to
the employee after reviewing the facts and circumstances of the case.

(h) If an employee seeks reimbursement for transportation costs, loss
of wages or incidental expenses related to medical treatment under this
part, that employee may submit such reimbursement request on the Medical
Travel Refund Request OWCP-957 form to OWCP along with all proof of
payment. Requests for reimbursement for lost wages under this subsection
must include an official statement from the employing agency indicating
the amount of wage loss.

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§ 10.803   What are the
time limitations on OWCP's payment of bills?

OWCP will pay providers and reimburse employees promptly for all bills
received on an approved form and in a timely manner. However, no bill will
be paid for expenses incurred if the bill is submitted more than one year
beyond the end of the calendar year in which the expense was incurred or
the service or supply was provided, or more than one year beyond the end
of the calendar year in which the claim was first accepted as compensable
by OWCP, whichever is later.

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Medical Fee Schedule

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§ 10.805   What services
are covered by the OWCP fee schedule?

(a) Payment for medical and other health services, devices and supplies
furnished by physicians, hospitals, and other providers for work-related
injuries shall not exceed a maximum allowable charge for such service as
determined by the Director, except as provided in this section.

(b) The schedule of maximum allowable charges does not apply to charges
for services provided in nursing home for employees admitted to that
nursing home prior to August 29, 2011, but does apply to all charges for
services provided by a nursing home where the employee was admitted to
that nursing home after that date. The schedule does apply to charges for
treatment furnished in a nursing home by a physician or other medical
professional at any time.

(c) The schedule of maximum allowable charges also does not apply to
charges for appliances, supplies, services or treatment furnished by
medical facilities of the U.S. Public Health Service or the Departments of
the Army, Navy, Air Force and Veterans Affairs.

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§ 10.806   How are the
maximum fees defined?

For professional medical services, the Director shall maintain a
schedule of maximum allowable fees for procedures performed in a given
locality. The schedule shall consist of: An assignment of Relative Value
Units (RVU) to procedures identified by Healthcare Common Procedure Coding
System/Current Procedural Terminology (HCPCS/CPT) code which represents
the relative skill, effort, risk and time required to perform the
procedure, as compared to other procedures of the same general class; an
assignment of Geographic Practice Cost Index (GPCI) values which represent
the relative work, practice expenses and malpractice expenses relative to
other localities throughout the country; and a monetary value assignment
(conversion factor) for one unit of value for each coded service.

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§ 10.807   How are
payments for particular services calculated?

Payment for a procedure, service or device identified by a HCPCS/CPT
code shall not exceed the amount derived by multiplying the Relative Value
Units (RVU) values for that procedure by the Geographic Practice Cost
Index (GPCI) values for services in that area and by the conversion factor
to arrive at a dollar amount assigned to one unit in that category of
service.

(a) The “locality” which serves as a basis for the determination of
cost is defined by the Office of Management and Budget Metropolitan
Statistical Areas. The Director shall base the determination of the
relative per capita cost of medical care in a locality using information
about enrollment and medical cost per county, provided by the Centers for
Medicare and Medicaid Services (CMS).

(b) The Director shall assign the RVUs published by CMS to all services
for which CMS has made assignments, using the most recent revision. Where
there are no RVUs assigned to a procedure, the Director may develop and
assign any RVUs that he or she considers appropriate. The geographic
adjustment factor shall be that designated by GPCI for Metropolitan
Statistical Areas as devised for CMS and as updated or revised by CMS from
time to time. The Director will devise conversion factors for each
category of service as appropriate using OWCP's processing experience and
internal data.

(c) For example, if the RVUs for a particular surgical procedure are
2.48 for physician's work (W), 3.63 for practice expense (PE), and 0.48
for malpractice insurance (MP), and the conversion factor assigned to one
unit in that category of service (surgery) is $61.20, then the maximum
allowable charge for one performance of that procedure is the product of
the three RVUs times the corresponding GPCI values for the locality times
the conversion factor. If the GPCI values for the locality are 0.988(W),
0.948 (PE), and 1.174 (MP), then the maximum payment calculation is:

[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] × $61.20

[2.45 + 3.44 + .56] × $61.20

6.45 × $61.20 = $394.74

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§ 10.808   Does the fee
schedule apply to every kind of procedure?

Where the time, effort and skill required to perform a particular
procedure vary widely from one occasion to the next, the Director may
choose not to assign a relative value to that procedure. In this case the
allowable charge for the procedure will be set individually based on
consideration of a detailed medical report and other evidence. At its
discretion, OWCP may set fees without regard to schedule limits for
specially authorized consultant examinations, for examinations performed
under 5 U.S.C. 8123, and for other specially authorized services.

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§ 10.809   How are
payments for medicinal drugs determined?

Payment for medicinal drugs prescribed by physicians shall not exceed
the amount derived by multiplying the average wholesale price, or as
otherwise specified by OWCP, of the medication by the quantity or amount
provided, plus a dispensing fee. OWCP may, in its discretion, contract for
or require the use of specific providers for certain medications.

(a) All prescription medications identified by National Drug Code (NDC)
will be assigned an average wholesale price representing the product's
nationally recognized wholesale price as determined by surveys of
manufacturers and wholesalers, or by other method designated by OWCP. The
Director will establish the dispensing fee, which will not be affected by
the location or type of provider dispensing the medication.

(b) The NDCs, the average wholesale prices, and the dispensing fee
shall be reviewed from time to time and updated as necessary.

(c) With respect to prescribed medications, OWCP may require the use of
generic equivalents where they are available.

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§ 10.810   How are
payments for inpatient medical services determined?

(a) OWCP will pay for inpatient medical services according to
pre-determined, condition-specific rates based on the Inpatient
Prospective Payment System (IPPS) devised by CMS (42 CFR parts 412, 413,
424, 485, and 489). Using this system, payment is derived by multiplying
the diagnosis-related group (DRG) weight assigned to the hospital
discharge by the provider-specific factors.

(1) All inpatient hospital discharges will be classified according to
the DRGs prescribed by the CMS in the form of the DRG Grouper software
program. Each DRG represents the average resources necessary to provide
care in a case in that DRG relative to the national average of resources
consumed per case.

(2) The provider-specific factors will be provided by CMS in the form
of their PPS Pricer software program. The software takes into
consideration the type of facility, census division, actual geographic
location (MSA) of the hospital, case mix cost per discharge, number of
hospital beds, intern/beds ratio, operating cost to charge ratio, and
other factors used by CMS to determine the specific rate for a hospital
discharge under their PPS. The Director may devise price adjustment
factors as appropriate using OWCP's processing experience and internal
data.

(3) OWCP will base payments to facilities excluded from CMS' IPPS on
consideration of detailed medical reports and other evidence.

(4) The Director shall review the pre-determined hospital rates at
least once a year, and may adjust any or all components when he or she
deems it necessary or appropriate.

(b) The Director shall review the schedule of fees at least once a
year, and may adjust the schedule or any of its components when he or she
deems it necessary or appropriate.

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§ 10.811   When and how
are fees reduced?

(a) OWCP accepts a provider's designation of the code used to identify
a billed procedure or service if the code is consistent with the medical
and other evidence, and will pay no more than the maximum allowable fee
for that procedure. If the code is not consistent with the medical
evidence or where no code is supplied, the bill will be returned to the
provider for correction and resubmission.

(b) If the charge submitted for a service supplied to an injured
employee exceeds the maximum amount determined to be reasonable according
to the schedule, OWCP shall pay the amount allowed by the schedule for
that service and shall notify the provider in writing that payment was
reduced for that service in accordance with the schedule. OWCP shall also
notify the provider of the method for requesting reconsideration of the
balance of the charge.

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§ 10.812   If OWCP
reduces a fee, may a provider request reconsideration of the
reduction?

(a) A physician or other provider whose charge for service is only
partially paid because it exceeds a maximum allowable amount set by the
Director may, within 30 days, request reconsideration of the fee
determination.

(1) The provider should make such a request to the OWCP district office
with jurisdiction over the employee's claim. The request must be
accompanied by documentary evidence that the procedure performed was
incorrectly identified by the original code, that the presence of a severe
or concomitant medical condition made treatment especially difficult, or
that the provider possessed unusual qualifications. In itself,
board-certification in a specialty is not sufficient evidence of unusual
qualifications to justify an exception. These are the only three
circumstances which will justify reevaluation of the paid amount.

(2) A list of OWCP district offices and their respective areas of
jurisdiction is available upon request from the U.S. Department of Labor,
Office of Workers' Compensation Programs, Washington, DC 20210, or from
the Internet at http://www.dol.gov./owcp. Within 30 days
of receiving the request for reconsideration, the OWCP district office
shall respond in writing stating whether or not an additional amount will
be allowed as reasonable, considering the evidence submitted.

(b) If the OWCP district office issues a decision which continues to
disallow a contested amount, the provider may apply to the Regional
Director of the region with jurisdiction over the OWCP district office.
The application must be filed within 30 days of the date of such decision,
and it may be accompanied by additional evidence. Within 60 days of
receipt of such application, the Regional Director shall issue a decision
in writing stating whether or not an additional amount will be allowed as
reasonable, considering the evidence submitted. This decision shall be
final, and shall not be subject to further review.

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§ 10.813   If OWCP
reduces a fee, may a provider bill the claimant for the balance?

A provider whose fee for service is partially paid by OWCP as a result
of the application of its fee schedule or other tests for reasonableness
in accordance with this part shall not request reimbursement from the
employee for additional amounts.

(a) Where a provider's fee for a particular service or procedure is
lower to the general public than as provided by the schedule of maximum
allowable charges, the provider shall bill at the lower rate. A fee for a
particular service or procedure which is higher than the provider's fee to
the general public for that same service or procedure will be considered a
charge “substantially in excess of such provider's customary charges” for
the purposes of § 10.815(d).

(b) A provider whose fee for service is partially paid by OWCP as the
result of the application of the schedule of maximum allowable charges and
who collects or attempts to collect from the employee, either directly or
through a collection agent, any amount in excess of the charge allowed by
OWCP, and who does not cease such action or make appropriate refund to the
employee within 60 days of the date of the decision of OWCP, shall be
subject to the exclusion procedures provided by § 10.815(h).

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Exclusion of Providers

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§ 10.815   What are the
grounds for excluding a provider from payment under the FECA?

A physician, hospital, or provider of medical services, appliances or
supplies shall be excluded from payment under the FECA if such physician,
hospital or provider has:

(a) Been convicted under any criminal statute of fraudulent activities
in connection with any Federal or State program for which payments are
made to providers for similar medical, surgical or hospital services,
appliances or supplies;

(b) Been excluded or suspended, or has resigned in lieu of exclusion or
suspension, from participation in any Federal or State program referred to
in paragraph (a) of this section;

(c) Knowingly made, or caused to be made, any false statement or
misrepresentation of a material fact in connection with a determination of
the right to reimbursement under the FECA, or in connection with a request
for payment;

(d) Submitted, or caused to be submitted, three or more bills or
requests for payment within a twelve-month period under this subpart
containing charges which OWCP finds to be substantially in excess of such
provider's customary charges, unless OWCP finds there is good cause for
the bills or requests containing such charges;

(e) Knowingly failed to timely reimburse employees for treatment,
services or supplies furnished under this subpart and paid for by
OWCP;

(f) Failed, neglected or refused on three or more occasions during a
12-month period to submit full and accurate medical reports, or to respond
to requests by OWCP for additional reports or information, as required by
the FECA and § 10.800;

(g) Knowingly furnished treatment, services or supplies which are
substantially in excess of the employee's needs, or of a quality which
fails to meet professionally recognized standards; or

(h) Collected or attempted to collect from the employee, either
directly or through a collection agent, an amount in excess of the charge
allowed by OWCP for the procedure performed, and has failed or refused to
make appropriate refund to the employee, or to cease such collection
attempts, within 60 days of the date of the decision of OWCP.

(i) Failed to inform OWCP of any change in their provider status as
required in section 10.800 of this title.

(j) Engaged in conduct related to care of an employee's FECA covered
injury that OWCP finds to be misleading, deceptive or unfair.

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§ 10.816   What will
cause OWCP to automatically exclude a physician or other provider of
medical services and supplies?

(a) OWCP shall automatically exclude a physician, hospital, or provider
of medical services or supplies who has been convicted of a crime
described in § 10.815(a), or has been excluded or suspended, or has
resigned in lieu of exclusion or suspension, from participation in any
program as described in § 10.815(b).

(b) The exclusion applies to participating in the program and to
seeking payment under the FECA for services performed after the date of
the entry of the judgment of conviction or order of exclusion, suspension
or resignation, as the case may be, by the court or agency concerned.
Proof of the conviction, exclusion, suspension or resignation may consist
of a copy thereof authenticated by the seal of the court or agency
concerned.

(c) A provider may be excluded on a voluntary basis at any time.

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§ 10.817   How are OWCP's
exclusion procedures initiated?

(a) Upon receipt of information indicating that a physician, hospital
or provider of medical services or supplies (hereinafter the provider) has
or may have engaged in activities enumerated in § 10.815(c) through
(j) OWCP will forward that information to the Department of Labor's Office
of Inspector General (DOL OIG) for its consideration. If the information
was provided directly to DOL OIG, DOL OIG will notify OWCP of its receipt
and implement the appropriate action within its authority, unless such
notification will or may compromise the identity of confidential sources,
or compromise or prejudice an ongoing or potential criminal
investigation.

(b) DOL OIG will conduct such action as it deems necessary, and, when
appropriate, provide a written report as described in paragraph (c) of
this section to OWCP. OWCP will then determine whether to initiate
procedures to exclude the provider from participation in the FECA program.
If DOL OIG determines not to take any further action, it will promptly
notify OWCP.

(c) If DOL OIG discovers reasonable cause to believe that violations of
§ 10.815 have occurred, it shall, when appropriate, prepare a written
report, i.e., investigative
memorandum, and forward that report along with supporting evidence to
OWCP. The report shall be in the form of a single memorandum in narrative
form with attachments.

(1) The report should contain all of the following elements:

(i) A brief description and explanation of the subject provider or
providers;

(ii) A concise statement of the DOL OIG's findings upon which exclusion
may be based;

(iii) A summary of the events that make up the DOL OIG's findings;

(iv) A discussion of the documentation supporting the DOL OIG's
findings;

(v) A discussion of any other information that may have bearing upon
the exclusion process; and

(vi) The supporting documentary evidence including any expert opinion
rendered in the case.

(2) The attachments to the report should be provided in a manner that
they may be easily referenced from the report.

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§ 10.818   How is a
provider notified of OWCP's intent to exclude him or her?

Following receipt of the investigative report, OWCP will determine if
there exists a reasonable basis to exclude the provider or providers. If
OWCP determines that such a basis exists, OWCP shall initiate the
exclusion process by sending the provider a letter, by certified mail and
with return receipt requested (or equivalent service from a commercial
carrier), which shall contain the following:

(a) A concise statement of the grounds upon which exclusion shall be
based;

(b) A summary of the information, with supporting documentation, upon
which OWCP has relied in reaching an initial decision that exclusion
proceedings should begin;

(c) An invitation to the provider to:

(1) Resign voluntarily from eligibility for providing services under
this part without admitting or denying the allegations presented in the
letter; or

(2) Request a decision on exclusion based upon the existing record and
any additional documentary information the provider may wish to
furnish;

(d) A notice of the provider's right, in the event of an adverse ruling
by the deciding official, to request a formal hearing before an
administrative law judge;

(e) A notice that should the provider fail to answer (as described in
§ 10.819) the letter of intent within 60 days of receipt, the
deciding official may deem the allegations made therein to be true and may
order exclusion of the provider without conducting any further
proceedings; and

(f) The address to where the answer from the provider should be
sent.

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§ 10.819   What
requirements must the provider's answer and OWCP's decision meet?

(a) The provider's answer shall be in writing and shall include an
answer to OWCP's invitation to resign voluntarily. If the provider does
not offer to resign, he or she shall request that a determination be made
upon the existing record and any additional information provided.

(b) Should the provider fail to answer the letter of intent within 60
days of receipt, the deciding official may deem the allegations made
therein to be true and may order exclusion of the provider.

(c) The provider may inspect or request copies of information in the
record at any time prior to the deciding official's decision by making
such request to OWCP within 20 days of receipt of the letter of
intent.

(d) Any response from the provider will be forwarded to DOL OIG, which
shall have 30 days to answer the provider's response. That answer will be
forwarded to the provider, who shall then have 15 days to reply.

(e) The deciding official shall be the Regional Director in the region
in which the provider is located unless otherwise specified by the
Director of the Division of Federal Employees' Compensation.

(f) The deciding official shall issue his or her decision in writing,
and shall send a copy of the decision to the provider by certified mail,
return receipt requested (or equivalent service from a commercial
carrier). The decision shall advise the provider of his or her right to
request, within 30 days of the date of an adverse decision, a formal
hearing before an administrative law judge under the procedures set forth
in §§ 10.820 through 10.823. The filing of a request for a hearing
within the time specified shall stay the effectiveness of the decision to
exclude.

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§ 10.820   How can an
excluded provider request a hearing?

A request for a hearing shall be sent to the deciding official and
shall contain:

(a) A concise notice of the issues on which the provider desires to
give evidence at the hearing;

(b) Any request for the presentation of oral argument or evidence;
and

(c) Any request for a certification of questions concerning
professional medical standards, medical ethics or medical regulation for
an advisory opinion from a competent recognized professional organization
or Federal, State or local regulatory body.

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§ 10.821   How are
hearings assigned and scheduled?

(a) If the deciding official receives a timely request for hearing, the
OWCP representative shall refer the matter to the Chief Administrative Law
Judge of the Department of Labor, who shall assign it for an expedited
hearing. The administrative law judge assigned to the matter shall
consider the request for hearing, act on all requests therein, and issue a
Notice of Hearing and Hearing Schedule for the conduct of the hearing. A
copy of the hearing notice shall be served on the provider by certified
mail, return receipt requested. The Notice of Hearing and Hearing Schedule
shall include:

(1) A ruling on each item raised in the request for hearing;

(2) A schedule for the prompt disposition of all preliminary matters,
including requests for the certification of questions to advisory bodies;
and

(3) A scheduled hearing date not less than 30 days after the date the
schedule is issued, and not less than 15 days after the scheduled
conclusion of preliminary matters, provided that the specific time and
place of the hearing may be set on 10 days' notice.

(b) The provider is entitled to be heard on any matter placed in issue
by his or her response to the Notice of Intent to Exclude, and may
designate “all issues” for purposes of hearing. However, a specific
designation of issues is required if the provider wishes to interpose
affirmative defenses, or request the issuance of subpoenas or the
certification of questions for an advisory opinion.

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§ 10.822   How are
subpoenas or advisory opinions obtained?

(a) The provider may apply to the administrative law judge for the
issuance of subpoenas upon a showing of good cause therefor.

(b) A certification of a request for an advisory opinion concerning
professional medical standards, medical ethics or medical regulation to a
competent recognized or professional organization or Federal, State or
local regulatory agency may be made:

(1) As to an issue properly designated by the provider, in the sound
discretion of the administrative law judge, provided that the request will
not unduly delay the proceedings;

(2) By OWCP on its own motion either before or after the institution of
proceedings, and the results thereof shall be made available to the
provider at the time that proceedings are instituted or, if after the
proceedings are instituted, within a reasonable time after receipt. The
opinion, if rendered by the organization or agency, is advisory only and
not binding on the administrative law judge.

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§ 10.823   How will the
administrative law judge conduct the hearing and issue the recommended
decision?

(a) To the extent appropriate, proceedings before the administrative
law judge shall be governed by 29 CFR part 18.

(b) The administrative law judge shall receive such relevant evidence
as may be adduced at the hearing. Parties to the hearing are the provider
and OWCP. Evidence shall be presented under oath, orally or in the form of
written statements. The administrative law judge shall consider the Notice
and Response, including all pertinent documents accompanying them, and may
also consider any evidence which refers to the provider or to any claim
with respect to which the provider has provided medical services, hospital
services, or medical services and supplies, and such other evidence as the
administrative law judge may determine to be necessary or useful in
evaluating the matter.

(c) All hearings shall be recorded and the original of the complete
transcript shall become a permanent part of the official record of the
proceedings.

(d) Pursuant to 5 U.S.C. 8126 and 29 CFR part 18, the administrative
law judge may issue subpoenas, administer oaths, and examine witnesses
with respect to the proceedings.

(e) At the conclusion of the hearing, the administrative law judge
shall issue a recommended decision and cause it to be served on all
parties to the proceeding, their representatives and the Director of
OWCP.

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§ 10.824   How does the
recommended decision become final?

(a) Within 30 days from the date the recommended decision is issued,
each party may state, in writing, whether the party objects to the
recommended decision. This written statement should be filed with the
Director of OWCP.

(b) For purposes of determining whether the written statement referred
to in paragraph (a) of this section has been timely filed with the
Director, the statement will be considered to be “filed” on the date that
the provider mails it to the Director, as determined by postmark or the
date that such written statement is actually received by the Director,
whichever is earlier.

(c) Written statements objecting to the recommended decision may be
filed upon one or more of the following grounds:

(1) A finding or conclusion of material fact is not supported by
substantial evidence;

(2) A necessary legal conclusion is erroneous;

(3) The decision is contrary to law or to the duly promulgated rules or
decisions of the Director;

(4) A substantial question of law, policy, or discretion is involved;
or

(5) A prejudicial error of procedure was committed.

(d) Each issue shall be separately numbered and plainly and concisely
stated, and shall be supported by detailed citations to the record when
assignments of error are based on the record, and by statutes, regulations
or principal authorities relied upon. Except for good cause shown, no
assignment of error by any party shall rely on any question of fact or law
upon which the administrative law judge had not been afforded an
opportunity to pass.

(e) If a written statement of objection is filed within the allotted
period of time, the Director will review the objection. The Director will
forward the written objection to the DOL OIG, which will have 14 calendar
days from that date to respond. Any response from DOL OIG will be
forwarded to the provider, which will have 14 calendar days from that date
to reply.

(f) The Director of OWCP will consider the recommended decision, the
written record and any response or reply received and will then issue a
written, final decision either upholding or reversing the exclusion.

(g) If no written statement of objection is filed within the allotted
period of time, the Director of OWCP will issue a written, final decision
accepting the recommendation of the administrative law judge.

(h) The decision of the Director of OWCP shall be final with respect to
the provider's participation in the program, and shall not be subject to
further review by any court or agency.

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§ 10.825   What are the
effects of exclusion?

(a) OWCP may give notice of the exclusion of a physician, hospital or
provider of medical services or supplies:

(1) All OWCP district offices;

(2) All Federal employers;

(3) The CMS;

(4) The State or local authority responsible for licensing or
certifying the excluded party.

(b) Notwithstanding any exclusion of a physician, hospital, or provider
of medical services or supplies under this subpart, OWCP shall not refuse
an employee reimbursement for any otherwise reimbursable medical
treatment, service or supply if:

(1) Such treatment, service or supply was rendered in an emergency by
an excluded physician; or

(2) The employee could not reasonably have been expected to have known
of such exclusion.

(c) An employee who is notified that his or her attending physician has
been excluded shall have a new right to select a qualified physician.

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§ 10.826   How can an
excluded provider be reinstated?

(a) If a physician, hospital, or provider of medical services or
supplies has been automatically excluded pursuant to § 10.816, the
provider excluded will automatically be reinstated upon notice to OWCP
that the conviction or exclusion which formed the basis of the automatic
exclusion has been reversed or withdrawn. However, an automatic
reinstatement shall not preclude OWCP from instituting exclusion
proceedings based upon the underlying facts of the matter.

(b) A physician, hospital, or provider of medical services or supplies
excluded from participation as a result of an order issued pursuant to
this subpart may apply for reinstatement one year after the entry of the
order of exclusion, unless the order expressly provides for a shorter
period. An application for reinstatement shall be addressed to the
Director for Federal Employees' Compensation, and shall contain a concise
statement of the basis for the application. The application should be
accompanied by supporting documents and affidavits.

(c) A request for reinstatement may be accompanied by a request for an
oral presentation. Oral presentations will be allowed only in unusual
circumstances where it will materially aid the decision process.

(d) The Director of OWCP shall order reinstatement only in instances
where such reinstatement is clearly consistent with the goal of this
subpart to protect the FECA program against fraud and abuse. To satisfy
this requirement the provider must provide reasonable assurances that the
basis for the exclusion will not be repeated.

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Subpart J—Death Gratuity

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§ 10.900   What is the
death gratuity under this subpart?

(a) The death gratuity authorized by 5 U.S.C. 8102a and payable
pursuant to the provisions of this subpart is a payment to a claimant who
is an eligible survivor (as defined in §§ 10.906 and 10.907) or a
designated alternate beneficiary (as defined in §§ 10.908 and 10.909)
of an employee who dies of injuries incurred in connection with the
employee's service with an Armed Force in a contingency operation. This
payment was authorized by section 1105 of Public Law 110-181 (2008). For
the purposes of this subchapter, the term “Armed Force” means the Army,
Navy, Air Force, Marine Corps, and Coast Guard.

(b) This death gratuity payment is a FECA benefit, as defined by
§ 10.5(a) of this part. All the provisions and definitions in this
part apply to claims for payment under this subpart unless otherwise
specified.

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§ 10.901   Which
employees are covered under this subpart?

For purposes of this subpart, the term “employee” means all employees
defined in 5 U.S.C. 8101 and § 10.5 of this part and all
non-appropriated fund instrumentality employees as defined in 10 U.S.C.
1587(a)(1).

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§ 10.902   Does every
employee's death due to injuries incurred in connection with his or her
service with an Armed Force in a contingency operation qualify for the
death gratuity?

Yes. All such deaths that occur on or after January 28, 2008 (the date
of enactment of Public Law 110-181 (2008)) qualify for the death gratuity
administered by this subpart.

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§ 10.903   Is the death
gratuity payment applicable retroactively?

An employee's death qualifies for the death gratuity if the employee
died on or after October 7, 2001, and before January 28, 2008, if the
death was a result of injuries incurred in connection with the employee's
service with an Armed Force in the theater of operations of Operation
Enduring Freedom or Operation Iraqi Freedom.

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§ 10.904   Does a death
as a result of occupational disease qualify for payment of the death
gratuity?

Yes—throughout this subpart, the word “injury” is defined as it is in 5
U.S.C. 8101(5), which includes a disease proximately caused by employment.
If an employee's death results from an occupational disease incurred in
connection with the employee's service in a contingency operation, the
death qualifies for payment of the death gratuity under this subpart.

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§ 10.905   If an employee
incurs a covered injury in connection with his or her service with an
Armed Force in a contingency operation but does not die of the injury
until years later, does the death qualify for payment of the death
gratuity?

Yes—as long as the employee's death is a result of injuries incurred in
connection with the employee's service with an Armed Force in a
contingency operation, the death qualifies for the death gratuity of this
subpart regardless of how long after the injury the employee's death
occurs.

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§ 10.906   What special
statutory definitions apply to survivors under this subpart?

For the purposes of paying the death gratuity to eligible survivors
under this subpart, OWCP will use the following definitions:

(a) “Surviving spouse” means the person who was legally married to the
deceased employee at the time of his or her death.

(b) “Children” means, without regard to age or marital status, the
deceased employee's natural children and adopted children. It also
includes any stepchildren who were a part of the decedent's household at
the time of death.

(1) A stepchild will be considered part of the decedent's household if
the decedent and the stepchild share the same principal place of abode in
the year prior to the decedent's death. The decedent and stepchild will be
considered as part of the same household notwithstanding temporary
absences due to special circumstances such as illness, education, business
travel, vacation travel, military service, or a written custody agreement
under which the stepchild is absent from the employee's household for less
than 180 days of the year.

(2) A natural child who is an illegitimate child of a male decedent is
included in the definition of “children” under this subpart if:

(i) The child has been acknowledged in writing signed by the
decedent;

(ii) The child has been judicially determined, before the decedent's
death, to be his child;

(iii) The child has been otherwise proved, by evidence satisfactory to
the employing agency, to be the decedent's child; or

(iv) The decedent had been judicially ordered to contribute to the
child's support.

(c) “Parent” or “parents” mean the deceased employee's natural father
and mother or father and mother through adoption. It also includes persons
who stood in loco parentis to the decedent for a period of not less than
one year at any time before the decedent became an employee.

(1) A person stood in loco parentis when the person assumed the status
of parent toward the deceased employee. (Any person who takes a child of
another into his or her home and treats the child as a member of his or
her family, providing parental supervision, support, and education as if
the child were his or her own child, will be considered to stand in loco
parentis.)

(2) Only one father and one mother, or their counterparts in loco
parentis, may be recognized in any case.

(3) Preference will be given to those who exercised a parental
relationship on the date, or most nearly before the date, on which the
decedent became an employee.

(d) “Brother” and “sister” mean any person, without regard to age or
marital status, who is a natural brother or sister of the decedent, a
half-brother or half-sister, or a brother or sister through adoption.
Step-brothers or step-sisters of the decedent are not considered a
“brother” or a “sister.”

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§ 10.907   What order of
precedence will OWCP use to determine which survivors are entitled to
receive the death gratuity payment under this subpart?

If OWCP determines that an employee's death qualifies for the death
gratuity, the FECA provides that the death gratuity payment will be
disbursed to the living survivor(s) highest on the following list:

(a) The employee's surviving spouse.

(b) The employee's children, in equal shares.

(c) The employee's parents, brothers, and sisters, or any combination
of them, if designated by the employee pursuant to the designation
procedures in § 10.909.

(d) The employee's parents, in equal shares.

(e) The employee's brothers and sisters, in equal shares.

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§ 10.908   Can an
employee designate alternate beneficiaries to receive a portion of the
death gratuity payment?

An employee may designate another person or persons to receive not more
than 50 percent of the death gratuity payment pursuant to the designation
procedures in § 10.909. Only living persons, rather than trusts,
corporations or other legal entities, may be designated under this
subsection. The balance of the death gratuity will be paid according to
the order of precedence described in § 10.907.

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§ 10.909   How does an
employee designate a variation in the order or percentage of gratuity
payable to survivors and how does the employee designate alternate
beneficiaries?

(a) Form CA-40 must be used to make a variation in the order or
percentages of survivors under § 10.907 and/or to make an alternate
beneficiary designation under § 10.908. A designation may be made at
any time before the employee's death, regardless of the time of injury.
The form will not be valid unless it is signed by the employee and
received and signed prior to the death of the employee by the supervisor
of the employee or by another official of the employing agency authorized
to do so.

(b) Alternatively, any paper executed prior to the effective date of
this regulation that specifies an alternate beneficiary of the death
gratuity payment will serve as a valid designation if it is in writing,
completed before the employee's death, signed by the employee, and signed
prior to the death of the employee by the supervisor of the employee or by
another official of the employing agency authorized to do so.

(c) If an employee makes a survivor designation under § 10.907(c),
but does not designate the portions to be received by each designated
survivor, the death gratuity will be disbursed to the survivors in equal
shares.

(d) An alternate beneficiary designation made under § 10.908 must
indicate the percentage of the death gratuity, in 10 percent increments up
to the maximum of 50 percent, that the designated person(s) will receive.
No more than five alternate beneficiaries may be designated. If the
designation fails to indicate the percentage to be paid to an alternate
beneficiary, the designation to that person will be invalid.

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§ 10.910   What if a
person entitled to a portion of the death gratuity payment dies after the
death of the covered employee but before receiving his or her portion of
the death gratuity?

(a) If a person entitled to all or a portion of the death gratuity due
to the order of precedence for survivors in § 10.907 dies after the
death of the covered employee but before the person receives the death
gratuity, the portion will be paid to the living survivors otherwise
eligible according to the order of precedence prescribed in that
subsection.

(b) If a survivor designated under the survivor designation provision
in § 10.907(c) dies after the death of the covered employee but
before receiving his or her portion of the death gratuity, the survivor's
designated portion will be paid to the next living survivors according to
the order of precedence.

(c) If a person designated as an alternate beneficiary under
§ 10.908 dies after the death of the covered employee but before the
person receives his or her designated portion of the death gratuity, the
designation to that person will have no effect. The portion designated to
that person will be paid according to the order of precedence prescribed
in § 10.907.

(d) If there are no living survivors or alternate beneficiaries, the
death gratuity will not be paid.

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§ 10.911   How is the
death gratuity payment process initiated?

(a) Either the employing agency or a living claimant (survivor or
alternate beneficiary) may initiate the death gratuity payment process. If
the death gratuity payment process is initiated by the employing agency
notifying OWCP of the employee's death, each claimant must file a claim
with OWCP in order to receive payment of the death gratuity. The legal
representative or guardian of any minor child may file on the child's
behalf. Alternatively, if a claimant initiates the death gratuity payment
process by filing a claim, the employing agency must complete a death
notification form and submit it to OWCP. Other claimants must also file a
claim for their portion of the death gratuity.

(b) The employing agency must notify OWCP immediately upon learning of
an employee's death that may be eligible for benefits under this subpart,
by submitting form CA-42 to OWCP. The agency must also submit to OWCP any
designation forms completed by the employee, and the agency must provide
as much information as possible about any living survivors or alternate
beneficiaries of which the agency is aware.

(1) OWCP will then contact any living survivor(s) or alternate
beneficiary(ies) it is able to identify.

(2) OWCP will furnish claim form CA-41 to any identified survivor(s) or
alternate beneficiary(ies) and OWCP will provide information to them
explaining how to file a claim for the death gratuity.

(c) Alternatively, any claimant may file a claim for death gratuity
benefits with OWCP. Form CA-41 may be used for this purpose. The claimant
will be required to provide any information that he or she has regarding
any other beneficiaries who may be entitled to the death gratuity payment.
The claimant must disclose, in addition to the Social Security number
(SSN) of the deceased employee, the SSNs (if known) and all known contact
information of all other possible claimants who may be eligible to receive
the death gratuity payment. The claimant must also identify, if known, the
agency that employed the deceased employee when he or she incurred the
injury that caused his or her death. OWCP will then contact the employing
agency and notify the agency that it must complete and submit form CA-42
for the employee. OWCP will also contact any other living survivor(s) or
alternate beneficiary(ies) it is able to identify, furnish to them claim
form CA-41, and provide information explaining how to file a claim for the
death gratuity.

(d) If a claimant submits a claim for the death gratuity to an
employing agency, the agency must promptly transmit the claim to OWCP.
This includes both claim forms CA-41 and any other claim or paper
submitted which appears to claim compensation on account of the employee's
death.

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§ 10.912   What is
required to establish a claim for the death gratuity payment?

Claim form CA-41 describes the basic requirements. Much of the required
information will be provided by the employing agency when it completes
notification form CA-42. However, the claimant bears the burden of proof
to ensure that OWCP has the evidence needed to establish the claim. OWCP
may send any request for additional evidence to the claimant and to his or
her representative, if any. Evidence should be submitted in writing. The
evidence submitted must be reliable, probative, and substantial. Each
claim for the death gratuity must establish the following before OWCP can
pay the gratuity:

(a) That the claim was filed within the time limits specified by the
FECA, as prescribed in 5 U.S.C. 8122 and this part. Timeliness is based on
the date that the claimant filed the claim for the death gratuity under
§ 10.911, not the date the employing agency submitted form CA-42. As
procedures for accepting and paying retroactive claims were not available
prior to the publication of the interim final rule, the applicable statute
of limitations began to run for a retroactive payment under this subpart
on August 18, 2009.

(b) That the injured person, at the time he or she incurred the injury
or disease, was an employee of the United States as defined in 5 U.S.C.
8101(1) and § 10.5(h) of this part, or a non-appropriated fund
instrumentality employee, as defined in 10 U.S.C. 1587(a)(1).

(c) That the injury or disease occurred and that the employee's death
was causally related to that injury or disease. The death certificate of
the employee must be provided. Often, the employing agency will provide
the death certificate and any needed medical documentation. OWCP may
request from the claimant any additional documentation that may be needed
to establish the claim.

(d) That the employee incurred the injury or disease in connection with
the employee's service with an Armed Force in a contingency operation.
This will be determined from evidence provided by the employing agency or
otherwise obtained by OWCP and from any evidence provided by the
claimant.

(1) Section 8102a defines “contingency operation” to include
humanitarian operations, peacekeeping operations, and similar operations.
(“Similar operations” will be determined by OWCP.)

(i) A “contingency operation” is defined by 10 U.S.C. 101(a)(13) as a
military operation that—

(A) Is designated by the Secretary of Defense as an operation in which
members of the armed forces are or may become involved in military
actions, operations, or hostilities against an enemy of the United States
or against an opposing military force; or

(B) Results in the call or order to, or retention on, active duty of
members of the uniformed services under section 688, 12301(a), 12302,
12304, 12305, or 12406 of Title 10, chapter 15 of Title 10, or any other
provision of law during a war or during a national emergency declared by
the President or Congress.

(ii) A “humanitarian or peacekeeping operation” is defined by 10 U.S.C.
2302(8) as a military operation in support of the provision of
humanitarian or foreign disaster assistance or in support of a
peacekeeping operation under chapter VI or VII of the Charter of the
United Nations. The term does not include routine training, force
rotation, or stationing.

(iii) “Humanitarian assistance” is defined by 10 U.S.C. 401(e) to mean
medical, surgical, dental, and veterinary care provided in areas of a
country that are rural or are underserved by medical, surgical, dental,
and veterinary professionals, respectively, including education, training,
and technical assistance related to the care provided; construction of
rudimentary surface transportation systems; well drilling and construction
of basic sanitation facilities; rudimentary construction and repair of
public facilities.

(2) A contingency operation may take place within the United States or
abroad. However, operations of the National Guard are only considered
“contingency operations” for purposes of this subpart when the President,
Secretary of the Army, or Secretary of the Air Force calls the members of
the National Guard into service. A “contingency operation” does not
include operations of the National Guard when called into service by a
Governor of a State.

(3) To show that the injury or disease was incurred “in connection
with” the employee's service with an Armed Force in a contingency
operation, the claim must show that the employee incurred the injury or
disease while in the performance of duty as that phrase is defined for the
purposes of otherwise awarding benefits under FECA.

(4)(i) When the contingency operation occurs outside of the United
States, OWCP will find that an employee's injury or disease was incurred
“in connection with” the employee's service with an Armed Force in a
contingency operation if the employee incurred the injury or disease while
performing assignments in the same region as the operation, unless there
is conclusive evidence that the employee's service was not supporting the
Armed Force's operation.

(ii) Economic or social development projects, including service on
Provincial Reconstruction Teams, undertaken by covered employees in
regions where an Armed Force is engaged in a contingency operation will be
considered to be supporting the Armed Force's operation.

(5) To show that an employee's injury or disease was incurred “in
connection with” the employee's service with an Armed Force in a
contingency operation, the claimant will be required to establish that the
employee's service was supporting the Armed Force's operation. The death
gratuity does not cover Federal employees who are performing service
within the United States that is not supporting activity being performed
by an Armed Force.

(e) The claimant must establish his or her relationship to the deceased
employee so that OWCP can determine whether the claimant is the survivor
entitled to receive the death gratuity payment according to the order of
precedence prescribed in § 10.907.

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§ 10.913   In what
situations will OWCP consider that an employee incurred injury in
connection with his or her service with an Armed Force in a contingency
operation?

(a) OWCP will consider that an employee incurred injury in connection
with service with an Armed Force in a contingency operation if:

(1) The employee incurred injury while serving under the direction or
supervision of an official of an Armed Force conducting a contingency
operation; or

(2) The employee incurred injury while riding with members of an Armed
Force in a vehicle or other conveyance deployed to further an Armed
Force's objectives in a contingency operation.

(b) An employee may incur injury in connection with service with an
Armed Force in a contingency operation in situations other than those
listed above. Additional situations will be determined by OWCP on a
case-by-case basis.

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§ 10.914   What are the
responsibilities of the employing agency in the death gratuity payment
process?

Because some of the information needed to establish a claim under this
subpart will not be readily available to the claimants, the employing
agency of the deceased employee has significant responsibilities in the
death gratuity claim process. These responsibilities are as follows:

(a) The agency must completely fill out form CA-42 immediately upon
learning of an employee's death that may be eligible for benefits under
this subpart. The agency must complete form CA-42 as promptly as possible
if notified by OWCP that a survivor filed a claim based on the employee's
death. The agency should provide as much information as possible regarding
the circumstances of the employee's injury and his or her assigned duties
at the time of the injury, so that OWCP can determine whether the injury
was incurred in the performance of duty and whether the employee was
performing service in connection with an Armed Force in a contingency
operation at the time.

(b) The employing agency must promptly transmit any form CA-41s
received from claimants to OWCP. The employer must also promptly transmit
to OWCP any other claim or paper submitted that appears to claim
compensation on account of the employee's death.

(c) The employing agency must maintain any designations completed by
the employee and signed by a representative of the agency in the
employee's official personnel file or a related system of records. The
agency must forward any such forms to OWCP if the agency submits form
CA-42 notifying OWCP of the employee's death. The agency must also forward
any other paper signed by the employee and employing agency that appears
to make designations of the death gratuity.

(d) If requested by OWCP, the employing agency must determine whether a
survivor, who is claiming the death gratuity based on his or her status as
an illegitimate child of a deceased male employee, has offered
satisfactory evidence to show that he or she is in fact the employee's
child.

(e) The employing agency must notify OWCP of any other death gratuity
payments under any other law of the United States for which the employee's
death qualifies. The employing agency also must notify OWCP of any other
death gratuity payments that have been paid based on the employee's
death.

(f) Non-appropriated fund instrumentalities must fulfill the same
requirements under this subpart as any other employing agency.

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§ 10.915   What are the
responsibilities of OWCP in the death gratuity payment process?

(a) If the death gratuity payment process is initiated by the employing
agency's submission of form CA-42, OWCP will identify living potential
claimants. OWCP will make a reasonable effort to provide claim form CA-41s
to any known potential claimants and provide instructions on how to file a
claim for the death gratuity payment.

(b) If the death gratuity payment process is initiated by a claimant's
submission of a claim, OWCP will contact the employing agency and prompt
it to submit form CA-42. OWCP will then review the information provided by
both the claim and form CA-42, and OWCP will attempt to identify all
living survivors or alternate beneficiaries who may be eligible for
payment of the gratuity.

(c) If OWCP determines that the evidence is not sufficient to meet the
claimant's burden of proof, OWCP will notify the claimant of the
additional evidence needed. The claimant will be allowed at least 30 days
to submit the additional evidence required. OWCP may also request
additional information from the employing agency.

(d) OWCP will review the information provided by the claimant and
information provided by the employing agency to determine whether the
claim satisfies all the requirements listed in § 10.912.

(e) OWCP will calculate the amount of the death gratuity payment and
pay the beneficiaries as soon as possible after accepting the claim.

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§ 10.916   How is the
amount of the death gratuity calculated?

The death gratuity payment under this subpart equals $100,000 minus the
amount of any death gratuity payments that have been paid under any other
law of the United States based on the same death. A death gratuity payment
is a payment in the nature of a gift, beyond reimbursement for death and
funeral expenses, relocation costs, or other similar death benefits. Only
other death gratuity payments will reduce the amount of the death gratuity
provided in this subpart. For this reason, death benefits provided to the
same employee's survivors such as those under 5 U.S.C. 8133 as well as
benefits paid under 5 U.S.C. 8134 are not death gratuity payments, and
therefore have no effect on the amount of the death gratuity provided
under this subpart.

(a) A payment provided under section 413 of the Foreign Service Act of
1980 (22 U.S.C. 3973), is a death gratuity payment, and if a deceased
employee's survivors received that payment for the employee's death, the
amount of the death gratuity paid to the survivors under this subpart
would be reduced by the amount of the Foreign Service Act death gratuity.
Other death gratuities that would affect the calculation of the amount
payable include but are not limited to: the gratuity provision in section
1603 of the Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Hurricane Recovery, 2006 (Pub. L. 109-234, June
15, 2006); the $10,000 death gratuity to the personal representative of
civilian employees, at Title VI, Section 651 of the Omnibus Consolidated
Appropriations Act of 1996 (Pub. L. 104-208, September 30, 1996); the
death gratuity for members of the Armed Forces or any employee of the
Department of Defense dying outside the United States while assigned to
intelligence duties, at 10 U.S.C. 1489; and the death gratuity for
employees of the Central Intelligence Agency, at 50 U.S.C. 403k.

(b) The amount of the death gratuity under this section will be
calculated before it is disbursed to the employee's survivors or alternate
beneficiaries, by taking into account any death gratuities paid by the
time of disbursement. Therefore, any designations made by the employee
under § 10.909 are only applicable to the amount of the death
gratuity as described in paragraph (a) of this section. The following
examples are intended to provide guidance in this administration of this
subpart.

(1) Example One. An employee's
survivors are entitled to the Foreign Service Act death gratuity; the
employee's spouse received payment in the amount of $80,000 under that
Act. A death gratuity is also payable under FECA; the amount of the FECA
death gratuity that is payable is a total of $20,000. That employee, using
Form CA-40 had designated 50% of the death gratuity under this subpart to
be paid to his neighbor John Smith who is still living. So, 50% of the
death gratuity will be paid to his spouse and the remaining 50% of the
death gratuity paid under this subpart would be paid to John Smith. This
means the surviving spouse will receive $10,000 and John Smith will
receive $10,000.

(2) Example Two. Employee dies
in circumstances that would qualify her for payment of the gratuity under
this subpart; her agency has paid the $10,000 death gratuity pursuant to
Public Law 104-208. The employee had not completed any designation form.
The FECA death gratuity is reduced by the $10,000 death gratuity and
employee's spouse receives $90,000.

(3) Example Three. An employee
of the Foreign Service whose annual salary is $75,000 dies in
circumstances that would qualify for payment of both the Foreign Service
Act death gratuity and the death gratuity under this subpart. Before his
death, the employee designated that 40% of the death gratuity under this
subpart be paid to his cousin Jane Smith, pursuant to the alternate
beneficiary designation provision at § 10.908 and that 10% be paid to
his uncle John Doe who has since died. At the time of his death, the
employee had no surviving spouse, children, parents, or siblings.
Therefore, the Foreign Service Act death gratuity will not be paid,
because no eligible survivors according to the Foreign Service Act
provision exist. The death gratuity under this subpart would equal
$100,000, because no other death gratuity has been paid, and Jane would
receive $40,000 according to the employee's designation. As John Doe is
deceased, no death gratuity may be paid pursuant to the designation of a
share of the death gratuity to him.

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